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In the latest episode of Corrs’ Essential ESG podcast, Dr Phoebe Wynn‑Pope is joined by Dr James Cockayne, NSW Anti‑Slavery Commissioner, for a timely discussion on the State’s evolving approach to modern slavery risk management.
Phoebe and James explore the origins and mandate of the Commissioner’s role and unpack how NSW is operationalising mandatory modern slavery due diligence across more than 450 public sector entities. The Commissioner discusses the development of the reasonable steps framework, its alignment with global human rights standards, and what it means for government buyers and suppliers operating across high‑risk, complex supply chains.
The conversation also touches on insights from the Commissioner's landmark monitoring probe into EVs and lithium‑ion battery procurement, including key findings, systemic issues identified in the reports, and the growing need for coordinated, whole‑of‑government capability to address modern slavery risks in critical supply chains.
This episode provides practical guidance for organisations navigating modern slavery obligations and highlights why modern slavery risk is increasingly a mainstream governance issue for both public and private sector entities.
Essential ESG is a podcast series presented by Corrs that breaks down topical issues affecting the rapidly evolving environmental, social and governance landscape in Australia and beyond.
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Phoebe Wynn-Pope, Head of Responsible Business and ESG, Corrs Chambers Westgarth
Dr James Cockayne - NSW Anti-Slavery Commissioner
Phoebe: Welcome to another edition of Essential ESG coming to you from the Lands of the Gadigal Country. My name is Phoebe Whynn-Pope and I am head of Responsible Business and ESG at Corrs Chambers Westgarth and today it is my absolute pleasure to introduce the NSW Anti-Slavery Commissioner, James Cockayne.
James: Hi Phoebe, great to be with you, thank you.
Phoebe: Welcome, thanks for coming in. So, James is trained in law, public policy and human rights. You have spent two decades overseeing and promoting human rights and responsible business from counter terrorism work in Africa and the Middle East, to advising the UN leaders in New York, Geneva and Tokyo. You have had an amazing career, James. It’s very impressive and over the last decade you have been focusing on the fight to end global modern slavery and that’s what we are going to talk about today and your role as Modern Slavery Commissioner. So, you were appointed as the inaugural NSW Anti-Slavery Commissioner in 2022, the first role of its kind in Australia and have been trailblazing that role for us and for the survivors of modern slavery around the world. But for listeners who might be less familiar with the office, can you just explain what the role involves and why NSW decided it needed a Commissioner, just a little bit of background for us.
James: Certainly. If we can cast our minds all the way back pre-COVID to about 2017-2018, there was quite a conversation going on in Australia about modern slavery and the need to have arrangements in place to try and tackle it, including in particular business and human rights type arrangements, due diligence and reporting arrangements. And there were two conversations happening in parallel: one around Federal legislation, which led to the Modern Slavery Act at the Federal level many of your listeners may know about that has corporate reporting; and then there was another conversation in NSW thinking about similar things. And actually, the NSW Parliament moved first, so the Modern Slavery Act 2018 of NSW was actually adopted before the Federal one. But once the Federal one came in it was clear that having two corporate reporting regimes with slightly different expectations and requirements and different thresholds was going to be messy. So the NSW one, while passed, was not really implemented for a little while and then it was revised by the NSW Parliament in 2021 and the focus was shifted from private sector due diligence to a big focus on public sector, corporate conduct due diligence, so that’s in public buying and the operations of public agencies and then also there were other provisions in that legislation including one that created my role. My role really is to monitor government laws, policies and actions to provide support to victims of modern slavery here NSW. We have to run a hotline, so we run a hotline called 1800 FREEDOM. We also work with government agencies to help them develop their capabilities to take reasonable steps to ensure they are not buying goods and services made with modern slavery and we generally champion the fight against modern slavery here in NSW.
Phoebe: Plenty to do. So this ‘reasonable steps’ is a really interesting concept and you have developed guidance around what that looks like. So can you give us a bit more of a sense of that, because that was one of the first things you did I think in 2023, produce the reasonable steps, it’s binding over 450 NSW public sector entities. But I’m not too sure that people are super familiar with what that means.
James: Yes, so when the legislation was put in place in NSW it was slightly different from the Federal legislation. Your listeners may be aware that under the Federal legislation certain private sectors entities have an obligation to report to the Federal Government about what they are doing to prevent modern slavery. The standard in NSW, under NSW Law at least for public sector entities, is actually thicker, it’s an actual positive due diligence, mandatory due diligence standard so it requires under the Public Works and Procurement Act which binds those actors for example are under the relevant act that binds local councils, it requires them to take reasonable steps to ensure they are not procuring goods and services with modern slavery, so that’s a substantive, mandatory due diligence standard. Now when I came on board on the 1st of August 2022, I had a queue of public entities that were subject to this legal requirement lined up to ask me “okay, what is a reasonable step? Does it depend on how big my agency is? Does it depend on how big the procurement is by value or volume? Does it depend on where we are sourcing? Does it depend on the product that we are sourcing?” What are the factors that determine what is reasonable. So we immediately set to work and worked with government agencies, local councils, the universities and state owned corporations that are captured by this framework to develop guidance, and that’s the guidance on reasonable steps that we published in December 2023, which took effect in January 2024, that guidance essentially translates into a NSW context the kind of conduct that is expected or ready under the UN guiding principles on business and human rights and the relevant OECD guidance. So, for actors in the private sector these expectations weren’t perhaps new but for the captured entities in the public sector, this has been a bit of learning process that we’re still working through. I should flag that although I keep referring to ‘public sector entities’ there is a flow through implication here because under the NSW Supply Code of Conduct, suppliers are expected to take reasonable steps. So for the more than 60 billion dollars of commerce that is subject to these expectations in NSW, this framework is already creating expectations around due diligence along those supply chains.
Phoebe: So we talk a lot about mandatory human rights due diligence or mandatory due diligence in the modern slavery context, and I think it has been talked about a lot at the moment in the context of the consultation on the Commonwealth Act,but fundamentally this is that mandatory due diligence already in place for NSW?
James: Yes that correct for a specific set of buyers but as I said, they’re buyers with pretty significant market power and reach.
Phoebe: Yes that’s right so then to be a supplier to those buyers, have you seen that effectively flowing through and effective implementation of that requirement to flow through to the suppliers and therefore their due diligence capability or are they sufficiently across what needs to be done from the private sector actor point of view to fulfil the requirements of the government procurers?
James: Yes look I think it’s a process. So, some buyers are really on this and as a result the suppliers that they work with are also getting on it. Other buyers are still coming to the party. I have a mandate that I like to say to government buyers here in NSW is a bit like being a teacher, I am not the school principal, that’s if you get called in by the NSW Auditor-General who has modern slavery audit powers. My job, is yes to mark the homework, I monitor the annual reporting that these actors are obliged to undertake on what they’re doing around this work, and I mark that homework but with a view to helping them develop their capabilities in the same way that a teacher would mark your homework. So, there is certainly a public naming component to this, I have a power to publish a public register of non-compliant entities and will have more to say on that in the coming months. But at the moment, several years in, that public register is empty officially because we understand that this is a process that buyers have to work through to develop the internal capabilities to explain the expectations to suppliers to help the suppliers upskill so that they can flow these requirements down to their sub-contractors and the system can actually start to operate as it’s intended.
Phoebe: Yes, because it’s not a stop-go situation it’s just too difficult for that. The Auditor-General, you have mentioned their audit powers, can you just let us know what that looks like and whether they are being used or whether there is an intent to use those.
James: Yes so the NSW Auditor-General is entirely independent of me, entirely independent as I am of executive government and they have various powers to audit the activities of certain public entities and one of those powers as of the changes in the legislation that we are talking about a few years ago is a modern slavery audit power. And there have been public statements from the Auditor-General indicating that they will treat the guidance on reasonable steps that we have published, as the auditable standard, and there has also been some work done in one of the recent reports from the Auditor-General looking at how this is beginning to be met across the cohort of entities that the Auditor-General audits. So certainly, I think in future we can expect to see a more vigorous use of that power, though as I mentioned, the guidance on reasonable steps recognises that there is incrementality to this process. Part of my role is to help actors figure out how to develop those capabilities and we have a series of reports that have just come out over the last year looking, for example, at whether reasonable steps were taken in the procurement of electric buses by the NSW Government and what we can learn from that process about how to meet these expectations.
Phoebe: Could you expand a little bit about that and on the findings of those reports and your recommendations going forwards. Because I think that particularly around renewable energy sources, so whether that’s solar or electric vehicles and things, there is a lot of complexity in those supply chains, so people are interested in that.
James: Yes, there is a lot of complexity and some really significant modern slavery risks. So when we published our guidance on reasonable steps, we also published a tool that lets government buyers in NSW know what level of risk we consider is associated with different types of products, different categories of products and we signalled then already that purchasers of certain vehicles and lithium-ion batteries were in our consideration inherently high risk. Now you still have to go through your own due diligence over the supplier etcetera, but the starting point is - okay this is one we need to pay particular attention to.
About a year after that a bit more than a year after that, the opposition asked some questions in Parliament and wrote to me saying “we’re concerned about a particular procurement activity that’s been undertaken by government to procure electric buses and we are worried about whether appropriate reasonable steps were taken”.
So we under my statutory powers initiated a probe which has taken us about a year given the complexity of this and the fact that we received more than 28,000 pages of documentation relating to all of this work and we have published three reports.
The first report was quite early in May of 2025 and it just sets out what is the reasonable steps framework that we are going to be applying here. One of the challenges here was that the guidance available to the buyers in question was evolving as they were undertaking this procurement. So it would not be fair to hold them to a standard that’s in place now if that standard and guidance was not in place at the time they are undertaking the activity.
So we had to pass very very carefully through all of that. That’s taken some time and we’ve just published two more reports. One is a deep dive into the steps that were taken and frankly were not taken in addressing the risks in this particular procurement activity for electric buses. The final report, the third report in this series which has also just been published, thinks about the implications across government. What kinds of capabilities do we need to see developed across government to effectively identify and manage these risks and in particular in that report we focus on the question “where are those capabilities that we shouldn’t be relying or expecting individual agencies to develop but that actually, for example, New South Wales Government as a whole might more effectively and efficiently develop”. So that could be things like the way that we identify risk in particular supply chains or in certain supplier relationships. It is not efficient or helpful for suppliers to be receiving lots of different slightly varied modern slavery questionnaires from lots of different buyers which is the case currently frankly. It would be much better if we had a system where those were at least coordinated or harmonised, ideally actually shared across government. Similarly, it is not necessarily efficient for every agency in New South Wales public sector to develop its own capability for managing contracts when modern slavery risks occur. That might be something that could be developed within central government and shared across two agencies as they need it.
Grievance mechanisms is another obvious example. We don’t need every agency in New South Wales Government trying to develop an effective grievance mechanism and frankly it won’t work because these supply chains are offshore, they are dealing with vulnerable populations. That is just not the expertise and is never going to be the expertise of some of the tiny New South Wales Government agencies that we’ve probably never even heard of.
So, there’s a lot still to do here but also positive signs emerging from Government that they recognise the work that needs to be done and they’re taking steps to make that happen.
Phoebe: It is very impressive the work that the New South Wales Government is doing with your leadership James in terms of really thinking through these issues and appreciating the difficulty of actually getting into those supply chains and understanding what that looks like. One of the things that comes across our desk a lot is how to really engage deep in the supply chain and what that looks like and how to think about shifting or responsible sourcing policies and strategies to shift the dial on some of these things from not only I suppose the New South Wales Government’s perspective, but globally thinking about what that looks like. I’d be interested in your thoughts about what sort of timeline we are looking at to really move some things forwards and we are seeing increasing forced labour bans going into trade deals that the US is making throughout Asia and there is the forced labour ban coming into effect in Europe, so how all of these things are going to play together and your view about how that’s going to shift the supply chains or whether it’s going to bifurcate the supply chains into ones which are respectful of workforces and others which are not so anxious about exploiting people who maybe working in situations of modern slavery.
James: Yes look I think the starting point here is the shift towards a more collaborative mindset and arrangements generally. One of the underlying themes of the UN Guiding Principles, and flowing through from there all the way down to our arrangements here in New South Wales, is the need to take a shared responsibility approach to managing modern slavery risks and harms and broader human rights risks and harms. That in itself is a shift of perspective that we need to work through at the individual organisation level but also at the system level. We are really still having the conversation here in Australia about what incentives are in place to either encourage or discourage collaboration by peers in the marketplace to develop sustainability solutions including for example anti-slavery solutions. But I think we are slowly seeing a move towards a more collaborative mindset. That then tips over into questions of sourcing.
So in New South Wales, for example, where we have a big emphasis and rightly so on the transition to a low carbon economy and yet we are confronted with the challenge that most of the lithium-ion batteries and probably nearly all of the solar panels that we need to buy to move rapidly in that direction are at high risk of having been made with modern slavery and right now it is extremely difficult to source reliably slavery-free suppliers of those products. So there is an expectation under the law in New South Wales that government buyers will use their leverage individually and collectively to try to encourage slavery-free supply.
So, part of your question was how long is this going to take? I think we are going to be seeing this happening very rapidly. I think it is a question that can’t be solved at the New South Wales level. Something like the access to solar panels implicates not only questions of Federal policy around industrial policy, trade, foreign affairs but also frankly questions around industrial policy along a long and complex supply chain. Now the good news in solar panels is that we know from their relatively short history that that supply chain is super responsive to industrial policy. If governments choose to alter tariff structures, the supply chain will move and there is every prospect of seeing the development of more reliably slavery-free supply. Whether that leads to actual bifurcation of a supply chain like that, I think depends a great deal on broader geo-political questions and whether we see the emergence of more segregated trading blocks. There’s lots of questions there. And the forced labour discussion is going to be connected to that but I hope it won’t become politicised because ultimately the aim here is to reduce risk to people.
Phoebe: That’s right and it’s a good reminder for us, that’s the whole point, is that there are people who are living in extreme hardship that are the whole focus of this.
I wanted to just ask you a couple more questions if I could. One is about the recent direction requiring tender clauses for high modern slavery risk procurements, so that’s come out of the New South Wales Procurement Board.
James: That's right.
Phoebe: But earlier we were chatting and you said that the direction is one thing but where it’s come from is even more important and reflects the importance of this for the New South Wales Government. Can you give us a bit of a …
James: Yes. So I have to explain to your listeners a little bit of the architecture of procurement governance in New South Wales which is an arcane but for me not insignificant topic. So the legislation requires a big array of public entities to take reasonable steps to not buy products of modern slavery. In New South Wales, government agencies are pretty autonomous in how they make procurement decisions but there is a Procurement Board which is essentially a group of major government buyers in New South Wales that has power under law to direct how certain procurement activities will be carried out. And when they do that, those directions have the force of law. The Minister for Procurement retains a power rarely used to direct the Procurement Board so to direct that group of agencies to adopt a direction and that’s what happened here. So the Minister for Procurement issued her own direction which led to the Procurement Board adopting a direction that requires, as a matter of law, agencies to use certain model tender clauses that we developed some time ago and that many of them have already begun using anyway.
So this is about pushing a train down the tracks faster. It’s not necessarily about adopting entirely new tracks running in a new direction. In fact, the implication for suppliers is not necessarily that major because these arrangements were already in place under both the guidance on reasonable steps and the New South Wales Supply Code of Conduct but giving it that force of law through a Procurement Board direction at the behest of the Minister, that’s a really important signal of the New South Wales Government’s commitment to operationalising these expectations under the law around reasonable steps.
Phoebe: So that push to mandatory is quite significant from that point of view isn’t it in terms of just as you say “speeding up the train, getting people to move in a direction more quickly than they need to”. So not such significant flow on effects for suppliers at this stage?
James: I think it will accelerate the conversation between buyers and suppliers. So that is significant, that does mean that suppliers can expect to see in the tender processes a more vigorous engagement with questions around modern slavery risk controls that they have in place and some pretty clear signals in those tendering processes about expectations of suppliers if or when modern slavery risks crystalise during the performance of a contract.
Phoebe: And what are those sorts of expectations at the moment? So, if I think a lot of people are a little bit anxious about looking too hard to see if there’s modern slavery in their supply chain because they’re not too sure what to do about it. So can you point some people into a more comfortable position let’s say around what that looks like because really we should not celebrate finding modern slavery in our supply chain, but we should feel confident that if that’s what we do find, that there are avenues for support and assistance in how to deal with those and what kind of remedy might be appropriate, etcetera.
James: Absolutely. So I would encourage people to actually engage with the guidance on reasonable steps that’s published on our website and lays out in seven quite clear steps what those expectations look like at different parts of the process. Certainly there is an expectation that buyers and suppliers will work together to address modern slavery risks and that may sound a bit banal but it actually has some pretty significant contractual and risk allocation implications. It means that we’re moving from a paradigm where the buyer seeks to push the risk down to the supplier, the supplier seeks to push it down to the subcontractor and we go all the way down the supply chain and whose left holding the parcel and the end, the vulnerable worker. We’re moving away from that paradigm to a paradigm where instead the contracts are going to basically require that when these risks are identified, it’s an expectation that they’re notified upwards because the supplier and the buyer will then work together and along supply chains to seek to remediate those risks and to remedy any resulting harms. Precisely as you’re getting at Phoebe a flip from “don’t tell us if you’ve got modern slavery, we don’t want to know about it” to the opposite “we strongly suspect you’re going to encounter modern slavery risks, we want to know what you’re doing and we want to help you get that right”. It’s a big paradigm shift.
Phoebe: Yes it is a big paradigm shift because I think there’s a lot of discussion about the risks but then the actual manifestation of those risk is something that we haven’t seen a lot of in the modern slavery reporting at the federal level to date, not nearly as much as we would expect when we know what the level modern slavery is around the world. Yes I think there is a residual anxiety about what that means.
James: And entirely understandable because this shift does have implications for how risk is managed within organisations. And that means though that there needs to be engagement with senior members of the organisation that this can’t be viewed as a narrow compliance or technical legal exercise, there needs to be engagement with senior risk officers, potentially inclusion of these risks in risk registers. There should, under the New South Wales Guidance for public buyers, there needs to be a risk management framework in place. The Board as we’ve seen from the recent decision involving ASIC and Star, the Board needs to be actively monitoring these things and the C-suite in particular need to be on top of these potential latent risks. In that case it had to do with money laundering, but modern slavery risk is very much of the same class.
Phoebe: Absolutely it’s a good parallel to draw. I think we’ve had such a great conversation but I think a final question for you, for the lawyers and business professionals listening, if they could take away one practical thing from the conversation, what would you want it to be? What is the single most important thing that organisations, whether in the public or the private sector, should be taking away right now to address modern slavery risks as effectively as they can?
James: I think the central point is that this is a real risk which has every prospect of being material for your organisations and just as we’ve had to grapple with a range of new risks like cyber risk in recent years, we can’t wish this one away. We’ve got to wrap our arms around the problem, think about how to deal with it, not just by adding on a module, but actually thinking in a deep way about how taking the risk to people, to vulnerable workers that we’re connected to, seriously impacts the way we work with our business partners and other partners. That’s a really critical thing to do and no one, in government or otherwise, is going to penalise you for taking best efforts to try and grapple with that problem.
Phoebe: Great. Thank you very much James. It’s been really fabulous talking to you.
James: My pleasure.
Phoebe: Good luck with your continuing endeavours.
James: Thanks Pheobe. Pleasure.
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