- Parliamentary Business
- Senators and Members
- News & Events
- About Parliament
- Visit Parliament
Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Table Of ContentsView/Save XML
Previous Fragment Next Fragment
- Start of Business
- AUSTRALIAN WOOL RESEARCH AND PROMOTION ORGANISATION AMENDMENT BILL 1998
- INDUSTRY RESEARCH AND DEVELOPMENT AMENDMENT BILL 1998
- CIVIL AVIATION AMENDMENT BILL 1998
- NATIONAL MEASUREMENT AMENDMENT (UTILITY METERS) BILL 1998
- HIGHER EDUCATION LEGISLATION AMENDMENT BILL (No. 1) 1998
- WILLIS, HON. M.
- DELEGATION REPORTS
- STATES GRANTS (PRIMARY AND SECONDARY EDUCATION ASSISTANCE) AMENDMENT BILL 1998
- SUPERANNUATION LEGISLATION (COMMONWEALTH EMPLOYMENT) REPEAL AND AMENDMENT (CONSEQUENTIAL AMENDMENTS) BILL 1998
- ELECTORAL AND REFERENDUM AMENDMENT BILL 1998
- SOCIAL SECURITY AND VETERANS' AFFAIRS LEGISLATION AMENDMENT (BUDGET AND OTHER MEASURES) BILL 1997
- STATES GRANTS (GENERAL PURPOSES) AMENDMENT BILL 1998
- MINISTERIAL ARRANGEMENTS
QUESTIONS WITHOUT NOTICE
One Nation Party: National Party Preferences
(Beazley, Kim, MP, Fischer, Tim, MP)
(Billson, Bruce, MP, Reith, Peter, MP)
One Nation Party
(Beazley, Kim, MP, Howard, John, MP)
Australian Financial System
(Hawker, David, MP, Costello, Peter, MP)
Industrial Relations: Outworkers
(McMullan, Bob, MP, Howard, John, MP)
Work for the Dole
(Randall, Don, MP, Kemp, Dr David, MP)
Industrial Relations: Red Cross Blood Donations
(Lee, Michael, MP, Reith, Peter, MP)
(Charles, Bob, MP, Costello, Peter, MP)
Industrial Relations: Defence Leave
(Bevis, Arch, MP, Bishop, Bronwyn, MP)
(Bartlett, Kerry, MP, Ruddock, Philip, MP)
(Macklin, Jenny, MP, Howard, John, MP)
(Andrew, Neil, MP, Vaile, Mark, MP)
(Campbell, Graeme, MP, Fischer, Tim, MP)
(Georgiou, Petro, MP, Ruddock, Philip, MP)
Goods and Services Tax
(Crosio, Janice, MP, Howard, John, MP)
(Cobb, Michael, MP, Truss, Warren, MP)
Goods and Services Tax
(Lawrence, Carmen, MP, Howard, John, MP)
(Hockey, Joe, MP, Downer, Alexander, MP)
- One Nation Party: National Party Preferences
- PERSONAL EXPLANATIONS
- SUPERANNUATION LEGISLATION (COMMONWEALTH EMPLOYMENT) REPEAL AND AMENDMENT (CONSEQUENTIAL AMENDMENTS) LEGISLATION
- QUESTIONS TO MR SPEAKER
- MATTERS OF PUBLIC IMPORTANCE
- MAIN COMMITTEE
- ASSENT TO BILLS
- MATTERS REFERRED TO MAIN COMMITTEE
- STATES GRANTS (GENERAL PURPOSES) AMENDMENT BILL 1998
- CRIMINAL CODE AMENDMENT (SLAVERY AND SEXUAL SERVITUDE) BILL 1998
- STATUTE STOCKTAKE BILL 1998
- ADELAIDE AIRPORT CURFEW LEGISLATION
- Member for Warringah: One Nation Party
- Drug Courts
- Dental Health
- One Nation Party
- One Nation Party
QUESTIONS ON NOTICE
Essendon Airport: Departures
(Thomson, Kelvin, MP, Vaile, Mark, MP)
Airservices Australia: Nally, Mr P.
(Tanner, Lindsay, MP, Vaile, Mark, MP)
Sydney (Kingsford-Smith) Airport: Preferred Runway Selection
(McClelland, Robert, MP, Vaile, Mark, MP)
Sydney (Kingsford-Smith) Airport: Long Term Operating Plan
(McClelland, Robert, MP, Vaile, Mark, MP)
Australian Exports: Value
(Jones, Barry, MP, Fischer, Tim, MP)
Prime Minister's 1997 Christmas Function
(Ellis, Annette, MP, Howard, John, MP)
Migrant Welfare Workers
(Ellis, Annette, MP, Ruddock, Philip, MP)
- Essendon Airport: Departures
Wednesday, 1 July 1998
Mr WILLIAMS (Attorney-General) (5:53 PM) —I move:
That the bill be now read a second time.
The purpose of this bill is to amend the Criminal Code Act 1995 to insert offences relating to slavery and sexual servitude. The importance of this bill is perhaps best demonstrated by the fact that its provisions will be inserted in chapter 9 of the code, which is the chapter that deals with crimes against humanity.
The Minister for Justice (Senator Vanstone) has pursued this initiative with our state and territory counterparts through the Standing Committee of Attorneys-General, and I am pleased that it has the support of all Australian jurisdictions.
At present, the law in Australia on slavery and the slave trade is governed by four 19th century imperial acts which employ archaic language and relate to outdated circumstances and institutions that have either changed or long since fallen into disuse.
In 1990 the Australian Law Reform Commission released report No. 48, Criminal Admiralty Jurisdiction and Prize, in which it recommended that the 19th century imperial acts be replaced with modern and concise Australian statutory offences. Modern Australian slavery offences will ensure that Australia's international obligations are properly fulfilled and that the elements of the offences and the penalties that apply are clear. The slavery offences in the bill prohibit both engaging in the slave trade and possessing a slave.
The definitions of `slavery' and `slave trade' are based on the definitions of those terms in the 1926 International Convention to Suppress the Slave Trade and Slavery and its 1953 protocol, and the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, which are the two key international agreements on slavery and the slave trade.
However, the bill definitions will be expanded in two important respects. First, in relation to the slave trade offence, the definition of that term will include `. . . exercising control or direction over or providing finance for the trade'. This will ensure that those who lie at the heart of the trade—the organisers, managers and financiers—will be caught by this offence. Secondly, the bill definition of slavery has been expanded to make it clear that slavery can also arise from a debt or contract. Of course, it is not sufficient for the debt or contract to be exploitative or oppressive to qualify. Rather, it must be such as to result in a condition that confers a right of ownership over the person before the definition is satisfied.
It is important to make the point that, although this bill contains separate offences to address the conduct I shortly will refer to as sexual servitude, the slavery offences may also apply if the control over the sex worker is so far reaching that it effectively amounts to a right of ownership over him or her.
The maximum term of imprisonment for the slavery offences is 20 years. In view of the heinousness of the crime involved, that penalty is more than justified. Since the new slavery offences will be replacing the old imperial acts, the bill contains provisions for their repeal.
Sexual Servitude Offences
In addition to the modern slavery offences, the bill also includes a range of model offences to deter the impact on Australia of a growing and highly lucrative international trade in people for the purposes of sexual exploitation.
Essentially the trade involves recruiting persons from one country and relocating them to another to work as prostitutes in servile or slave like conditions for little, if any, reward. Young women are the primary target of this insidious trade but, tragically, children are also falling victim to it in increasing numbers.
Over recent years the world has seen a disturbing increase in this appalling activity. There are few countries today that are not in some way affected by the trade and, sadly, the indications are that Australia is becoming an important destination for its victims.
Australia has obligations under a wide range of international instruments to prohibit servitude and the trafficking in persons for the purposes of sexual exploitation. These include the Convention on the Elimination of all Forms of Discrimination Against Women 1979, the Convention on the Rights of the Child 1989 and the Universal Declaration of Human Rights 1948.
Intelligence from Australian and overseas sources confirms that the problem is a significant one for Australia. In August last year the AFP reported that, in the previous 18 months, it had received information of 14 possible cases in this country. The NCA also reported that it is aware of eight possible cases over the period from December 1992 to November 1996. The NCA cases involved 25 women, one of whom was allegedly a 13-year-old girl brought to this country from Thailand to work as a prostitute to repay her father's debt.
We must not wait for what is already a significant problem to become so firmly entrenched that it proves to be too difficult to rectify in the future. The stakes are too high. Australians are rightly proud of their record on human rights, and what is involved here are serious violations of fundamental human rights.
Our intelligence is that the recruits come mainly from South-East Asia. The poorer regions of the world are fertile ground for potential victims desperate to escape poverty and unemployment. In many cases recruits are aware that they will be employed as sex workers but they are usually unaware of the conditions under which they will be required to work. In other cases recruits are deceived into believing that they will be engaged in other work, only to be forced into prostitution when they arrive in Australia.
What do they find when they arrive in this country? The reports I have received paint an ugly picture. For example, once in Australia recruits are often placed under heavy security and their movements strictly controlled. Those who are fortunate enough to live off the brothel premises frequently find that they are driven by guards to and from work and are not free to go elsewhere. Others can live and work almost entirely at the brothel.
The recruits are rarely allowed time off work and have little or no control over how many clients they service a day. Many are not free to reject a client or to determine the conditions under which they service them. Unsafe sexual practices are regularly imposed on them and, as a consequence, they live under the constant fear of contracting HIV and other sexually transmitted diseases. Their passports and other travel documents are frequently taken away from them and transgressions are often met with intimidation, violence and threats to harm them or their families or to report them to the immigration authorities.
There are various pay arrangements between the sex workers and the organisers but in most cases the recruits are placed under a debt to the sponsors, allegedly for the costs of the airfares and arranging false travel documents and for ongoing expenses, such as accommodation and board. The sex workers are frequently required to fully repay the debt before they can retain their earnings. In many cases the recruits are not informed of this until after they arrive in Australia. As a precautionary measure, the sex workers' earnings are often not paid to them but directly to the sponsor or parlour owner.
The debt is usually far in excess of the sponsor's actual expenses and is often unilaterally increased in response to some transgression on the part of the sex worker. In some cases sex workers have complained that their debt is in the region of $40,000 to $50,000 and in others that they would have to service up to 500 clients before they could discharge their debt. In many cases recruits receive little or nothing for their work by the time they are detected by the authorities and deported back home.
In August last year the AFP reported that there are numerous syndicates and individuals engaged in sex trafficking into Australia and many have been operating in this country for many years. The organisers use sophisticated methods and appear to have links with international crime syndicates and major drug traffickers. Large untaxed profits are made by the organisers and large sums of money are transferred by them overseas. Investigations show that the gross cash flow to organisers of the trade could be in the region of $1 million per week, much of which is transferred overseas.
Advice to Senator Vanstone is that current Commonwealth, state and territory laws have not proved effective to discourage the growth of this activity in Australia. There are a number of reasons for this. First, sex trafficking to Australia is part of a large and increasing international trade so although existing laws may address some aspects of the domestic activity, they do not address the core of the problem—the international conduct.
Secondly, the primary focus of relevant prostitution and migration offences is on the persons subjected to trafficking, such as the illegal immigrants or the sex workers, and not on the traffickers. Thirdly, although existing state and territory laws, such as assault and false imprisonment, may apply to the offenders directly involved, the organisers and recruiters are less vulnerable to prosecution because their involvement is remote from the exploitative prostitution.
If we are to discourage this activity in Australia, we need offences that are specific to the problem and address both the international and domestic aspects of the trade. Most importantly, we need offences that target the traffickers who recruit, organise and profit from those engaged in prostitution in slave-like conditions.
Last year, the Minister for Justice, Senator Vanstone, asked the Standing Committee of Attorneys-General to consider a legislative response to the problem of sexual servitude in Australia. In April this year, it approved the release of a discussion paper that broadly endorsed a strategy to enact a package of Commonwealth, state and territory offences directed at the whole trade and not just aspects of it. The sexual servitude offences in this bill are the Commonwealth's part of that package of uniform laws and are based on the model offences recommended in the discussion paper released by the Standing Committee of Attorneys-General in April.
The bill will create offences of:
1) causing a person to enter into or remain in sexual servitude in Australia;
2) procuring a person to enter into sexual servitude in Australia by deceiving the person about the nature or other aspects of the engagement;
3) engaging in any trade in persons for sexual servitude in Australia; and
4) exercising control or direction over or providing finance for conduct involving the procuring of persons and engaging in the trade in persons for sexual servitude.
The maximum term of imprisonment for these offences is seven years. However, the bill restricts the application of these offences to conduct which occurs entirely or partly outside Australia and the sexual services are to some extent provided or to be provided in Australia.
The corresponding state and territory offences will operate where the conduct occurs wholly within Australia. The `causing' offence in proposed subclause 30.4(2) is intended to catch those who are both directly and indirectly involved in bringing about a person's entry into, or continued participation in, sexual servitude. It is an important provision in targeting the organisers of the trade. Although the concept of causation in the criminal law is complex, it is a notion which is familiar to the courts. The connection must be sufficiently strong to justify attributing criminal responsibility to the conduct (Royall v. the Queen (1991) 172 CLR 378).
The procuring offence in proposed paragraph 30.4(3)(a) will only apply if the defendant deceives the recruit about the nature or other aspects of the engagement. It is intended to catch defendants who, for example, tell a recruit that she or he will be employed as a waiter when in fact she or he is employed as a prostitute in servile conditions. It will also apply in cases where the recruit is deceived about the debt repayment arrangements and then finds herself or himself in a condition of sexual servitude.
The next two offences in proposed paragraphs 30.4(3)(b) and (c) are perhaps the most important in the armoury because they are directed at the principals involved in the trade—the organisers, managers and financiers. These offences are similar to the `slave trade' offence in that they prohibit engaging in the trade in persons for sexual servitude and exercising control or direction over or providing finance for procuring persons and engaging in the trade in persons for sexual servitude. The central element of these offences is the element of `sexual servitude'. That term is defined as the condition of a person who provides sexual services and who, because of the use of force or threats is not free (a) to cease providing sexual services within a reasonable time or on reasonable terms; (b) to decline to provide sexual services to a particular person or persons; or (c) to leave the place or area where the person provides sexual services.
There are a few points I would like to make about this definition. First, sexual servitude can only apply where the services are provided in a commercial context. However, it is not limited to prostitution but can apply to sex work generally, such as pornography. Secondly, sexual servitude can only arise if one of the three matters I have mentioned has been brought about by the use of force or threats. Further, whether a person is not free in respect of those matters will be determined on the facts of each case and in the context of the mischief the legislation is directed against.
The fact that a person may suffer a penalty under the terms of a typical employment contract or is threatened with the loss of her or his job, would not of itself amount to being `not free'. It is only if the force or threats effectively deny the person her or his freedom whether to perform the work that sexual servitude can be made out.
A `reasonable time' and `reasonable terms' for ceasing to provide sexual services are treated similarly. It will only be if the terms for terminating the employment are so unrea sonable as to create a condition of servitude that the conduct will be caught. In borderline cases, where there is doubt about whether the terms are unreasonable in that sense, it is expected that the courts will resolve the matter in favour of the defendant.
The difference between slavery and sexual servitude in the bill is essentially one of degree. To establish slavery it must be shown that the accused exercises a power of ownership over the victim. Sexual servitude falls short of ownership but the domination over the victim is such as to effectively deny her or his freedom in some fundamental respects. For the sexual servitude offences in the bill, criminal liability will only arise if the victim's freedom is denied in respect of one of the three matters listed in the definition.
I would like to make some final points about the bill. Both the slavery and sexual servitude offences can be committed by non-nationals as well as Australian citizens and residents. In the case of the slavery offences, they can be committed by both nationals and non-nationals, whether they act wholly inside or outside Australia or partly inside and outside Australia. For sexual servitude, the offences may be committed by both nationals and non-nationals who act wholly outside Australia or partly outside and partly inside Australia.
The international nature of the trade in persons and the inherently evil nature of that trade satisfy me that the offences should have this application. However, to ensure that Australia's international relations are not adversely affected in cases where extraterritorial jurisdiction is invoked, the bill contains a standard provision that my written consent must be obtained before a non-national can be prosecuted for a slavery or sexual servitude offence, if the relevant conduct occurs wholly or partly outside Australia. The bill also includes a double jeopardy provision which provides that a person cannot be prosecuted for a slavery or sexual servitude offence in respect of conduct for which he or she has already been convicted or acquitted in another country for offences against the law of that country.
Finally, since the offences in the bill are all indictable, the provisions of the Proceeds of Crime Act 1987 will apply. That act allows a court to order the confiscation and forfeiture of property used in, or in connection with, the commission of a relevant offence as well as any profits derived therefrom.
As I have said, this bill is part of a package of Commonwealth, state and territory legislation directed at both the international and domestic aspects of the trade, with the main focus on those who recruit, organise and profit from this insidious trade. By enacting this legislation, we will be sending a firm message to the organisers and recruiters that Australia must not be a destination for their trade. We will also give encouragement to the rest of the world to do the same. Australia can be justly proud if it shows leadership to other countries affected by this inhumane trade.
I commend the bill to the House and present the explanatory memorandum to the bill.
Debate (on motion by Mr Tanner) adjourned.