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Thursday, 10 March 2005
Page: 123


Senator LUDWIG (4:13 PM) —by leave—I move:

That the Senate take note of the report.

I rise today to speak on the Senate Legal and Constitutional Legislation Committee report on the Criminal Code Amendment (Trafficking in Persons Offences) Bill 2004 [2005]. There are very good reasons for this legislation, and that is why Labor has supported the general intent of this bill from day one. The bill is intended to fight crime. As a result of a world that has become increasingly interconnected, there has been a huge increase in the amount of people, money and goods crossing national borders over the last 50 years. Trade, investment and tourism have expanded in this country as a result of these changes. While traders, investors and tourists have not been slow to capitalise on more open arrangements, it is also true that criminals have not been slow either.

To combat this growing phenomenon of transnational crime, in 2000 the United Nations adopted a Convention against Transnational Organised Crime, which was supplemented by the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. Australia signed this UN convention in late 2000 and the convention entered into force generally in 2003. After a national interest analysis had been performed on the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Australia signed up to that as well in late 2002. The government has indicated its intention to ratify the protocol once legislation is in place to meet the protocol. Of course, before it can do that, it has to ensure that our laws against trafficking in persons meet the requirements of the protocol. That is what this bill is all about. It is aimed at meeting Australia’s obligations under the protocol.

However, the UN is not the sole promoter of the law in this regard. The second source of the law comes from antislavery legislation. It is worth taking a minute to reflect on the fact that it was 200 years ago this year, in 1805, that the British House of Commons passed the first antislavery bill. Although that bill was subsequently rejected, a similar bill was passed and adopted in 1807. Australia inherited its antislavery legislation from that source. In fact the current criminal provisions that exist in the Criminal Code date from as recently as 1999 and stem from a Law Reform Commission recommendation to replace the old imperial legislation with modern statutes. As a result of the 1999 legislation, there is already a regime in the Criminal Code that deals with trafficking in persons. But this bill will improve these measures and, if the government adopts the committee’s recommendations, we will have good law for the law enforcement agencies to use to fight against those who traffic in women and children.

I will talk briefly about some of the recommendations from the committee report. The committee has made 12 recommendations, all of which were supported unanimously. It is not my intention to go through each and every one of those today, but I would like to point out some of the key points One of the key findings of the committee is that the bill as it stands does not appear to be successful in meeting articles 3 and 5 of the UN protocol, which require the criminalisation of the conduct. That is more than a little disappointing given it is the whole reason for the bill. In any case the protocol has been assessed in the national interest analysis as being in the national interest, so it is clear we need to act in the national interest and ensure the bill does meet the protocol. That is exactly what the committee has sought to do in this process and the first way to do that, according to the recommendations, is to remove the reference to ‘consent’ from subsections 271.2(1) and 271.5(1).

I will not go to any of the detail within the bill because we can deal with that in the second reading debate. The committee found that the inclusion of the word ‘consent’ in these provisions is redundant. At the least it is counterproductive and at the worst it may have the potential to unnecessarily limit the scope of those offences. Moreover, the dependency of these provisions on consent is, in and of itself, inconsistent with the UN protocol. For this reason, the committee recommended the government remove ‘consent’ from that definition.

There is a second recommendation made by the committee that also concerns these two subsections in particular, and that is for the provisions to be dependent on exploitation, and for this to be included in the definition. It was only after careful consideration that the committee made this recommendation. My own original concern was that it was like the issue of consent I just mentioned: adding qualifications to the definition—in this case exploitation—tends to limit its application. Labor wanted to ensure that our Customs, Immigration and police officials have the legislative tools necessary to combat traffickers in person in every conceivable form. But it appears that general offences against people smugglers are already covered by the provisions that cover the trafficking of unauthorised arrivals under the Migration Act. So the general offence relating to smuggling or trafficking in persons is unlawful and already adequately covered in legislation. What is missing is exploitation-specific offences that relate to both lawful and unlawful entry. Further, the UN protocol specifically calls for the criminalisation of exploitative offences, not just general offences. The committee has made a recommendation to ensure the bill includes the element of a purpose of exploitation.

The third recommendation of the committee also relates to these two subsections and it recommends stating that these provisions apply to each of the means of trafficking listed in the definition of ‘trafficking in persons’ contained in article 3(a) of the UN protocol. This means things like the abuse of power or a position of vulnerability, the giving or receiving of payments or benefits to achieve the consent of a person having control over another person and other forms of coercion should be included within it. It is a worthy end to include these meanings because we want to be sure the provisions have maximum applicability. Although there are several other recommendations that deal with the legislative specifics, I do not want to go to all of them, and will just leave it at those one or two that are cogent.

On the broader recommendations: the committee’s findings are that the Commonwealth’s consultative process was woeful. I want to give credit to the many organisations that were able to pick up that this consultative process was in place and assist the committee in its process. Particularly, I want to thank individuals like Kayte Fairfax from World Vision; Noor Blumer from Australian Women Lawyers; Kathleen Maltzahn from Project Respect; and Associate Professor Sheila Jeffreys from the Coalition Against Trafficking of Women and thank their organisations because they managed, in a very short space of time, to put together credible submissions and present them to the committee.

I want to extend my thanks to all the individuals and organisations involved in the committee process and thank those who took time to make submissions, because this is a serious issue and we need to get it right. I would also like to extend my thanks to fellow members of the committee, especially the chair, and also to the hardworking staff of the committee secretariat who had a tough job to make it all happen. Labor looks forward to the government’s response. I hope these recommendations are picked up by the government and placed within the bill.

Question agreed to.