Modern Slavery

Reference

Legislation and Policy

Status

Optional (See guidance below)

Source

Australian Border Force

Legislation / Policy

Modern Slavery Act 2018 is available at https://www.legislation.gov.au/Series/C2018A00153

Australian Border Force publication guidance for reporting entities.

Legislation / Policy contact

The Modern Slavery Business Engagement Unit (Unit) in the Australian Border Force (ABF) is available to provide support and advice to Government agencies: slavery.consultations@abf.gov.au.

Additional information

Australian Border Force publication Addressing Modern Slavery in Government Supply Chains - A toolkit of resources for Government procurement officers (including Risk Screening Tool, Tender Guidance and Supplier Questionnaire)

United Nations’ Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework available at https://www.ohchr.org/documents/publications/
guidingprinciplesbusinesshr_en.pdf

Guidance

The Australian Government is taking a global leadership role in combating modern slavery through its landmark Modern Slavery Act (Cth) 2018 (the Act). The Act, which entered into force on 1 January 2019, requires large businesses, and the Australian Government, to publish annual Modern Slavery Statements outlining their actions to identify, assess and address modern slavery risks in their global operations and supply chains. The Australian Government must submit its annual modern slavery statement by 31 December each year. Statements will capture activities undertaken in the financial year immediately prior to publication.

To support the Government’s reporting obligations, entities should now take action to identify and address modern slavery risks in their procurement activities. Commonwealth procurement may include goods and services from sectors considered to be a high risk of modern slavery. For example, this includes, but is not limited to, construction, textiles and cleaning and security services. Before engaging a supplier or renewing an existing contract, procurement officers should consider the general risk profile of the procurement or the risk profile of the supplier relating to modern slavery compliance.

The Australian Border Force (ABF) has produced a modern slavery procurement toolkit to assist procurement officers in identifying, assessing and addressing modern slavery risks in procurement activities. The toolkit contains a risk screening tool and other resources, including a suite of model modern slavery contract clauses for inclusion in Government procurement contracts. The model clauses aim to ensure suppliers respond to modern slavery risks and support the Government’s efforts to address modern slavery in its own supply chains.

The contract clauses have graduating obligations that agencies can select from depending on the modern slavery risk profile of the particular procurement. You can assess the risk profile using the Risk Screening Tool in the Toolkit. For higher risk contracts, the relevant contract clauses require suppliers and the relevant Government entity to take additional steps to ensure that any modern slavery risks are identified and adequately addressed.

The clauses were drafted for use with the Commonwealth Contracting Suite (CCS) templates for high value and/or high modern slavery risk procurements with an expected value over $200,000. While inclusion of modern slavery model clauses in all contracts is optional, ABF recommends its inclusion to support your entity to manage both modern slavery risks and facilitate the Government’s reporting requirements under the Act.

Clauses

The modern slavery model clauses are available on the Government’s Modern Slavery Register Website at this link: https://modernslaveryregister.gov.au/resources/

In addition to these model clauses, Clause C.C.22 of in the Commonwealth Contract Terms will be amended by the end of November to require the Supplier to provide relevant information to the Customer to meet any reporting obligations required by legislation, including the Modern Slavery Act 2018. This mandatory requirement will apply to all procurements which use the CCS.

Notes

Choice of a modern slavery model clause will depend on the nature of the contract, including supply chain characteristics, value and risk profile. Entities are able to modify or adapt the model clauses to ensure consistency with their procurement documentation. 

Where an entity develops its own modern slavery clauses, the entity must ensure that any such clauses fully comply with the CPRs and provides the appropriate information necessary to ensure compliance by the entity.

Users should consider the interaction of this clause with any provisions dealing with subcontractors, In particular, in the context of procurements that involve supply chains that involve entities other than the supplier, it would likely be relevant to ensure that the supplier imposes similar obligations on its subcontractors, including raw material suppliers.

Users should also consider any interaction of this clause with other contract provisions dealing with performance management, reporting and termination.

Standardisation of contractual text results in efficiencies for both parties to a contract. Before deciding which particular clause is appropriate, procurement officials should carefully consider the context of their procurement.

The modern slavery model clauses use terminology consistent with the CCS with capitalised terms (unless otherwise defined) based on the definitions in the CCS Glossary. The terminology is also consistent with definitions and concepts in the Act or relevant international policy materials. Capitalised terms may need to be changed to align with other contract terminology.

Contract Management

Depending on how the modern slavery clause/s operate within the context of other provisions in the contract dealing with the performance management and termination, there may be a right of termination for material breach of one of the modern slavery clauses.

Before considering invoking any such rights, Government entities are encouraged to work with suppliers to develop better practices to address modern slavery. The right of termination should only be exercised in relation to material breach of a modern slavery contract clause where the supplier has repeatedly and deliberately disregarded the terms of the clause/s, and demonstrates no intention of engaging with the Government entity to remedy the breach.


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