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Wednesday, 27 February 2013
Page: 1047


Senator FAULKNER (New South Wales) (09:31): A little earlier in the week I commenced my second reading debate contribution and spoke, I think, for all of 37 seconds about this important legislation—the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012. I was about to mention that the bill reinforces the key values of fairness, equity under the law and a fair day's pay for a fair day's work.

Slavery still exists. It is not a relic of the past. This bill takes head-on three modern manifestations of slavery—forced marriage, forced labour and organ trafficking—and it does so in accordance with Australia's international legal obligations. Under the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination against Women and the International Covenant on Economic, Social and Cultural Rights, Australia is obligated to take steps to fully realise rights recognised in these treaties, including marriage with the free consent of both spouses.

Forced marriage should not be confused with arranged marriage or religious custom. Christianity, Hinduism, Islam and Sikhism require full and free consent to marriage. In an arranged marriage families usually play a significant role in promoting the idea of marriage to the bride and groom but spouses do have the right to refuse the arrangement. The International Family Law journal suggested in 2004 that many victims of forced marriage suffer tremendously. Cases have included emotional and physical abuse, abduction and kidnapping, genital mutilation, rape, enforced pregnancy, abortion and even murder.

This bill creates a new offence for forced marriages. While it may be argued that the broad definition of 'slavery' as found by the High Court in The Queen v Wei Tang allows prosecution under the existing Criminal Code, the government has chosen to codify the crime, leaving no room for uncertainty at common law. Proposed new section 270.7A provides a definition of 'forced marriage'. This expanded definition will allow for prosecution of servile relationships which are not legally recognised as marriage in Australia. Proposed new section 270.7B inserts two new forced marriage offences. One subsection will be used in the prosecution of those who are a party to the marriage. The other subsection allows for the prosecution of third parties who either use force or coercion to foster such a marriage or are reckless to the fact that the marriage is forced.

While many consider the face of 21st-century slavery to be forced prostitution, a recent discussion paper from the Attorney-General's Department noted that slavery also exists in industries such as hospitality, construction, and agriculture, as well as in domestic situations. One recent example of this was a horrific case in the Blue Mountains in NSW where a restaurateur was prosecuted after promising a better life to an Indian national. After his arrival in Sydney, this individual's travel documents were seized and he was forced to work hours on end without pay as a kitchen hand, accommodated only in a backyard tin shed.

This bill broadens the definitions and offences which were previously associated with sexual servitude and creates a number of new sections which will apply more generally to all forms of servitude and all forms of forced labour. The definition of sexual servitude is replaced with a definition of servitude. Also replaced is the offence of sexual servitude with a broader offence of servitude. The elements of the new offence are: causing a person to enter or remain in servitude, or conducting a business involving servitude.

The bill creates a continuum of offences, from forced labour where physical restraint is not proved, to servitude where ownership is not proved, to slavery. The bill allows for an alternative verdict for forced labour if servitude is not proved beyond reasonable doubt provided the accused is accorded procedural fairness with respect to the alternate crime.

The third arm of this bill relates to organ trafficking. Australia is obliged under the trafficking protocol to criminalise organ trafficking. This bill inserts seven new offences into the Criminal Code relating to organ trafficking based on two subdivisions: organ trafficking and harbouring a victim. The offences are designed to criminalise every element of organ trafficking. For example, the harbouring offence only requires the prosecution to prove recklessness in harbouring, receiving or concealing a victim. Factors which will trigger the aggravated offence—carrying a larger penalty—are: if the victim is under 18; if the victim is subject to cruel punishment; or if in the conduct of organ trafficking the victim or another person dies or suffers serious harm. The aggravated offence of harbouring will be triggered if the victim is under 18.

It is now 189 years since slavery was abolished in the British Empire This decision had effect in the colony of New South Wales in 1824. It is 147 years since the 13th amendment of the US Constitution banned slavery. It is 125 years since slavery was abolished in Brazil in 1888. Nevertheless, this bill recognises that slavery remains a reality today. This bill will ensure more investigations, simpler trials and swifter convictions for those involved in such appalling exploitation and denial of liberty, and I support this bill.