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Wednesday, 27 February 2013
Page: 1048


Senator FAWCETT (South Australia) (09:41): I also rise to address the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012. As Senator Faulkner has just indicated, it is some hundreds of years, over 200 years in fact, since Wilberforce in 1807 brought the Slave Trade Act into the British parliament, and in 1837 the abolition of slavery. So many people when they look at films about slavery, like Lincoln with Daniel Day-Lewis who won the Oscar, tend to think about it as a thing in the past.

But it is not. For many people around the world their basic freedoms, their liberties and their individual rights are being abused. The exploitation involved, normally in the form of people trafficking, can take a wide range of forms including sexual exploitation, forced labour or services, organ harvesting, as well as sexual or domestic servitude and including forced marriage. The United Nations Office on Drugs and Crime found that victims were trafficked from a wide range of countries, over 127 countries, and there were more than 130 places around the world where they were exploited. All of this looks at trafficking for people for forced labour or sex but it does not actually include things like forced marriage or forced adoptions, so there is quite a broad range of people.

It is difficult to determine the extent of it in Australia. There are discrepancies between the estimates of government and non-government operations, but the Australian Federal Police have undertaken 305 investigations around people-trafficking offences between 2004 and 2011. As of June 2011, 184 victims had been referred to Australia's Support for Victims of People Trafficking Program, which indicates that it is an issue here in Australia and not just in other parts of the world.

It is interesting to see that the people who are quite active around the world and here in Australia are groups such as World Vision and groups within the Catholic Church and other churches. It is a timely reminder that, for all the bad press that churches receive at times, when it comes to standing up for people's freedoms and their rights it is often people who are motivated by their faith who are actually taking steps and going out of their way to stand up for and to support people. Wilberforce was one of the earliest examples in this particular area, but I commend organisations such as World Vision for their extensive work and their campaigns of not trading lives.

It is an issue, though, in Australia. In South Australia recently we have had bills looking at things like decriminalising prostitution. Evidence has come from the University of Melbourne, for example, talking about the existence of trafficked prostitutes in Asia working in South Australia's illegal brothels and that decriminalisation would make the problem even worse. So there is evidence that this is not something that is just overseas, that is just in someone else's backyard. This occurs in our backyard and it affects our communities, so it is appropriate that this parliament does something about it. We need to support the work of organisations such as World Vision and Rahab, which was started by young women who reach out to and care for the women who are caught up in the sex industry, often having been trafficked, in places like South Australia.

It is also the case that whilst we tend to think of forced marriage as being something that perhaps happens in other countries, it does happen here in Australia. There have been a number of newspaper articles over the last few years highlighting the cases of young women who have sought the protection of the Australian Federal Police and others to stop them being sent from this country by their parents to end up in a marriage that they were not willing to be part of. The Australian Embassy in Lebanon, for example, handled around 12 forced marriage cases involving girls as young as 14, with claims that they were raped and kidnapped, back in 2005. So whilst the size of the problem is not definitely known, we do know that it is a problem.

This bill seeks to codify, for the first time, some of these offences so that we are making a very clear statement that what may be culturally acceptable in some countries is not acceptable here in Australia; that it is not only against our values and the freedoms and rights of individuals but, if those are not being respected, we will make it against the law so people realise what is expected if they live here in Australia. The objective of the bill is to strengthen and expand the capability of investigators and prosecutors to combat people-trafficking and slavery, in particular for the purposes of labour exploitation, and to facilitate the prosecution of these offences.

Specifically, the bill introduces new offences of forced labour, forced marriage, harbouring a victim and organ trafficking and makes a number of consequential amendments. It ensures that the slavery offence applies to conduct which renders a person a slave, as well as conduct involving a person who is already a slave. It extends the application of the existing offences of deceptive recruiting and sexual servitude so that they apply to non-sexual servitude and all forms of deceptive recruiting. It increases the penalties applicable to the existing debt bondage offences to ensure they adequately reflect the relative seriousness of the offences, and again there are some consequential amendments. I will come back to that point later because I have some concerns that some of the priorities in terms of the potential sentences do not reflect correctly the relative seriousness of the offences.

The bill also broadens the definition of exploitation under the code to include a range of slavery-like practices and it amends existing definitions in the code to capture more subtle forms of coercion, including psychological oppression and the abuse of power or a person's vulnerability. It clarifies the phrase that 'omission to perform an act that by law there is a duty to perform', in subsection 4.3(b) of the code, encompasses not only those duties imposed under Commonwealth law but also imposed under a state or territory law or at common law.

The coalition does have some concerns with the bill, and coalition senators made additional comments in the report by the Senate Legal and Constitutional Affairs Legislation Committee which looked into this crimes legislation amendment bill. One of the concerns is around the very broad definition of coercion. The explanatory memorandum explicitly says the term has been drafted to be broad and non-exhaustive in order to supplement the existing framework and 'ensure the broadest possible range of exploitative behaviour is captured and criminalised'. But the failure to actually define what coercion means leaves open the possibility that a broad range of relationships in which power is unequal might be characterised as coercive. There are also some concerns around the strict liability provisions, and the coalition will be putting forward some amendments in that regard.

I would like to come to some specific issues that I have noted in both the information surrounding the bill and specific clauses. One specific issue I thought was worthy of note when I was researching the background for this speech and looking at the inquiry in South Australia is that evidence from a Melbourne university in relation to the South Australian bill looked at alternative models of legislation. I think it is worthwhile for this parliament to also consider alternative approaches to reducing the demand for services that create the market for people to traffic.

The Nordic model was discussed during evidence provided to the South Australian parliament. Under the model that was first adopted in Sweden, the clients of prostitutes commit an offence punishable with fines or even custodial sentences, while the prostitutes themselves are considered to have committed no offence. The evidence presented indicates that it seems to have been effective as there is now no known trafficking in Sweden. There are a small number of women, perhaps as few as 600, involved in prostitution now in Sweden, compared to Australia, where the industry believes there are some 17,000. There are no brothels and street prostitution is almost gone. Clearly, having a different approach and making the consumer of the service liable, as opposed to the provider, is a way to protect people who are often victims of life circumstances that force them into that line of work. By not making their conduct illegal but making the conduct of the client illegal, it seems to be effective.

I believe it is appropriate that this parliament should take note of some of those kinds of initiatives to make sure that we balance cracking down on these sorts of behaviours and these sorts of industries that exploit people with protecting the people who are exploited. I would particularly like to come to this concept of relative offences. Clause 270.7 talks about deceptive recruiting for labour or services. The penalty in the case of an aggravated offence is imprisonment for nine years or, in any other case, imprisonment for seven years. We heard Senator Faulkner talk before about the person who had been brought from the Indian subcontinent to Australia and who ended up essentially being made to work as a slave, living in a tin shed. That was deceptive recruiting, which led to slave-like practices. I completely accept that that is not appropriate. But if we move on to 270.7A, which looks at forced marriage, we find that in the case of an aggravated offence for forced marriage the imprisonment is seven years or, in any other case, the imprisonment is only four years. The relativity of that is, I believe, inappropriate.

Let us look at some of the newspaper articles, and I go particularly to an article in the Australian in February of last year. It talks about a centre in Western Sydney where there is a lady who runs a support service for young women who have been caught up in forced marriage or who have had pressure from family around that. She talks about the fact that this is very common in Australia, that it is deliberately hidden by community and religious leaders and that it co-exists with family violence and the subjugation of women. The article talks about the fact that legal aid lawyers have told the courts that, in a number of cases, girls are subjected to violence or threats of violence, including being dragged around by the hair, hit when they refuse the marriage that has been planned for them, taken out of school, locked in their bedrooms until they agree to go through the ceremony, or psychologically pressured by being told that their female relatives will be kidnapped and raped if they continue to resist the plans that have been made for them. In the worst case recorded, workers in the Migrant Resource Centre in Tasmania told authorities there that local families were exchanging dowries before girls were even 14, and that they have a case of a girl's family in Australia who pinned her down while her new husband raped her to seal the deal. How can that be a lesser offence in terms of the penalties than the deceptive recruiting? In terms of the standards that Australia maintains for the respect of individuals, this legislation should be sending the message that that kind of behaviour is inappropriate, that it is unacceptable and that it will be punished to the full extent of the law.

I also have some concerns as to the same section around strict liability. Clause 270.7B(2)(c) talks about the person who is not a victim of a forced marriage having committed an offence and says that strict liability applies to that person. What that means is that, in this case, if there is a young woman, a young girl who is 13 or 14 years old, who is forced by her parents to take part in a marriage, there is a strict liability upon the groom, whether that person is 18 or 48 or whatever age, to prove his innocence. Firstly, that is a fundamental change in the assumption of innocence that we normally have here, in Australia. Secondly, as we have seen in many of these cases, that person is in another country and, yes, he may be a party to the marriage, but the one who is actually guilty of forcing the marriage, who is guilty of the psychological or physical oppression, is not the groom; in many cases, it is the parents. If there is going to be strict liability then, surely, it would be on the people who have actually caused the physical or psychological harm, the people who have exerted influence and control over the young woman as opposed to the person who is the other party in what some would see as an arranged marriage. Clearly, for someone who is underage in Australia, those who are guilty of making this a forced marriage are the caregivers, which, unfortunately and unthinkably from our world view here in Australia, appear to be the parents. So I have a concern with the concept of strict liability in the first place of reversing that onus of proof, but I am particularly concerned that it may be applied against the wrong party. I believe it is something that needs to be considered in this bill.

Having said that, I do support the bill for all the reasons I have stated. It is long since Abraham Lincoln and long since William Wilberforce, and so you would like to think that our world has moved on; but, clearly, it has not. I believe it is important to recognise that many of the practices we are talking about, particularly around forced marriages, come from cultures other than that which is considered mainstream in Australia. The citizenship pledge which people take when they come to this country says in its preamble that it is important for all Australian citizens to understand their responsibilities. It also talks about what it means to be a citizen, whether Australian by birth or by choice. It is a critical part of building our nation. People are required to make the Australian Citizenship Pledge at citizenship ceremonies and, in doing so, they are making a public commitment to Australia and to accepting the responsibilities and privileges of citizenship. The pledge says:

From this time forward, under God—

if you take the oath—

I pledge my loyalty to Australia and its people, whose democratic beliefs I share, whose rights and liberties I respect, and whose laws I will uphold and obey.

So the strength of this piece of legislation is in the fact that it is saying that, in Australia, we do believe in democracy. We do believe that individuals have rights and liberties. We have extended a welcome hand to people to come and be part of this country, but if they will not respect the rights and liberties of all citizens, including their own children, then this parliament representing the people of Australia will make laws that highlight the standards that we expect in terms of upholding those rights and liberties.

The people who come to this country are welcome and expected, under this pledge, to share our democratic beliefs, to respect rights and liberties, and to uphold the law. I plead with them to leave behind those things that are not compatible with the expectations of this country, which they have chosen to make their new home in, in the interests of their dependants, their families and this community, so that we can build a strong, cohesive community as one people living in one nation under one law.