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Wednesday, 27 February 2013
Page: 1061


Senator KROGER (VictoriaChief Opposition Whip in the Senate) (10:44): I rise too, with an enduring concern and interest to protect women from the most abhorrent crimes, as Senator Hanson-Young has referred to, to speak on the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012. As my colleague Senator Brandis noted earlier in this debate, most of the offences described as new by the government are in essence definitional changes to existing offences in the Criminal Code. However, there are important new offences in organ trafficking and forced marriage, and it is the establishment of two new offences related to forced marriage that I will confine my remarks to, largely because of my involvement in the inquiry which has been alluded to.

In saying that, though, I would just like to briefly mention that I support the strengthening of regulations against organ trafficking. I do not think there is anyone in Australia who would consider it to be anything but a heinous crime, but we have to recognise and be cognisant of the fact that this is an emerging and flourishing commercial trade that happens overseas and continues to happen today as we stand here to legislate against it. So this is a good move in the sense that it strengthens our position on it—legislating against it to make sure that we stamp out all possibility of this happening in Australia and of people overseas abusing the legislative program and framework here in Australia.

As I said, I support my colleagues' comments on the bill before me and in particular the concerns that they have raised, such as about the ambiguously wide definition of 'servitude', which could be misused in an industrial relations context. As always, on this side of the chamber we give the utmost care and consideration to ensuring that legislation that comes before us in this place does not lead to unintended consequences for our community. I call on the Gillard government to support our proposed amendments.

I will now focus the remainder of my comments today on forced marriage and the relevant offences that this bill addresses. It was just over a year ago that confronting media reports and stories from the community about young women being brought to Australia to be forced into marriage led me to co-author with Senator Cash an inquiry into this issue. While that inquiry looked at all aspects of prospective marriage visas, many of the submissions contained evidence and commentary relating to the incidence of forced marriage in this country. We heard from many witnesses who came forward about their concerns in this regard.

The definition that this bill inserts into the Criminal Code defines a forced marriage as one where, because of 'coercion, threat or deception', a person, the victim, 'entered into the marriage without freely and fully consenting'. It is inconceivable to many of us that any person, any woman, could be forced into entering a marriage against her will. As we understand, it is a cultural--and in some countries, a religious—practice, a tradition, where marriages are arranged between two parties, but I note that here in Australia that is not how we do things. Marriage is probably one of the biggest decisions that any two individuals will make in their lives. It is one of the greatest commitments that any two individuals can make between themselves, and so it should be. I strongly oppose anything that contravenes that, and I am particularly concerned that individuals may be forced into marriages here in Australia, when it is certainly not our tradition and it is not the Australian way of life.

Unfortunately, I have to say that the anecdotal evidence reveals that there is a hidden and disturbing problem here in this country. It may not be a huge problem. That is something that is very hard to identify, and Senator Sarah Hanson-Young has just spoken to the lack of anecdotal evidence that we have here, but there is certainly evidence that this is a disturbing problem here. There are reported cases of so-called marriage trafficking, where women are brought to Australia and forced into marriage, as well as the reverse situation, where women are taken overseas for the very same purpose. It is impossible for me to forget the widely reported plight of a 17-year-old Sydney girl who managed to save herself from a forced marriage in Lebanon with the help of the Australian Federal Police. There are also alarming accounts of women living in Australia being similarly forced into marriage here, particularly in the migrant community.

As I mentioned earlier, the difficulty that we have is that this evidence is anecdotal. The incidence of forced marriages in this country is an unknown factor. As Dr Tomison, Director of the Australian Institute of Criminology, made clear in the recent prospective marriage visa classes inquiry, research into human trafficking and in particular the connection between marriage and human trafficking is in an infancy stage. In other words, there is and has been extremely little, if any, research undertaken to ascertain the significance of this in Australia. The AIC does intend to further examine these connections, and I wish them all the best in that critical work. There is no doubt that, as the AIC, as well as the Coalition Against Trafficking in Women in Australia, have argued, there is a need for greater research into and awareness of the issue of forced marriage.

In this respect, we can look to the United Kingdom, where this issue has been given significant attention and focus, with the Foreign and Commonwealth Office even establishing a Forced Marriage Unit in 2005. This unit has a policy role in working with other government departments and community organisations to tackle the issue and has been responsible for, among other things, publishing guidelines to help front-line workers identify and deal with cases of forced marriage. It has been recommended to this government that it consider establishing a working group to investigate the incidence of forced marriages in Australia and to explore relevant options that can be provided to assist victims. I strongly call on the government to act on this recommendation which goes hand in hand with the legislation that we have before us today.

It is also imperative that we seize the opportunity to put the spotlight on this issue to protect current and future victims. We need more research into exactly how prevalent forced marriages are, we need to raise awareness of the problem in the community and we need to provide more information and support to women who tragically find themselves the victim of this heinous practice. We also need, as the prospective marriage visa classes inquiry recommended, to raise the minimum age of visa holders within the prospective marriage visa program to 18 years of age to help minimise the incidence of forced marriage and human trafficking in Australia. The current visa requirements allow for young women under the age of 17 to be brought to this country for nine months, be sponsored by someone here in Australia and come here under the age of 18 with the intention of them being married at the age of 18. The inquiry heard much evidence in relation to this, but we did determine that: that was too young; girls under the age of 18 were particularly exposed; they would potentially not be provided with proper protection and afforded the rights that they should be; it was a fragile age; and that is one immediate change that could be made to strengthen our position in relation to forced marriages. And now, this moment in time, is when we need to do all of this. We cannot afford to wait a moment longer because, if we do, another young woman could find herself trapped in a situation not of her own making.

I welcome the creation of two forced marriage offences in this bill. The Criminal Code does not currently explicitly criminalise the act of causing a person to enter into a forced marriage, but with this bill it will become illegal to both cause a person to enter into a forced marriage and to be a party to a forced marriage. The second offence is directed at the spouse who is not a victim of forced marriage. Some critics have raised concerns about criminalising forced marriage and the potential for victims to be deterred from reporting for fear of the court process and being ostracised. This is another issue raised during the inquiry that I will come to shortly and that I have serious concerns about. I agree with the majority of organisations, including the Coalition Against Trafficking in Women, that work in this field needs to support criminalisation. We need to make absolutely clear that Australia condemns this practice of forcing women into marriage and that under no circumstances do we support it. Ours is a country where people are free to choose whom they marry, and so must it remain. I also believe that including these offences in the Criminal Code will help to raise awareness of the problem—a problem that often remains hidden but, once again, exists. However, the coalition does have concerns as to the strict liability imposed in the forced marriage offences. There is a reversal of the onus of proof so that, if the prosecution establishes a person was forced into marriage, the other party to the marriage is presumed guilty and must establish a lawful excuse.

I will just reflect on a couple of issues that came out of the inquiry and that other senators have raised in their debate on these particular bills. Firstly, there is the need for a central register. Through the inquiry, we established that there is no one agency responsible for collating any information on this. If the police, the department of community affairs or the immigration office are advised of a matter, there is no one central agency that is advised of the incidence or the concerns expressed that an individual may be in a forced marriage and may be having issues in relation to that. There is no single body collecting this information. The example that we were given in the United Kingdom is one that we encourage the government to consider because it centralises the data collection process. Whilst that sounds clinical and cold, all we have here at the moment is anecdotal evidence which raises huge concerns. It is critical that we actually have analytical data to back up and provide the support for changing the current system in the way it applies. In my mind, having a central agency, whether that be the Department of Immigration and Citizenship or not, responsible for the collection of data is the number one way in which we could strengthen the process and the regulation that relates to this. I also note that, when we talked about forced marriages and we discussed the women who are victims in this so-called equation, it is very difficult to flush out this information because many of these women are very fearful of their circumstances.

So you have situations where women are brought here who do not speak English, who have no network of friends around them—when the husband leaves for the day, they have no-one else they can speak to—and who are not aware of their rights here in Australia. They may come from countries where they fear police, so they may come here with a culture of fearing police authorities. More importantly, they are actually unaware of their rights and they do not have anyone to speak to. The big issue is in ensuring that every woman who comes here under a sponsored marriage arrangement is apprised of their rights—and I think through the immigration department. Australian authorities should be assured and comfortable with the fact that that individual is fully across what their rights are in Australia, what our protections are for individuals and the support network that is available through the refugee network. If they should change their mind about the circumstances in which they have come here then they should feel that they genuinely have a network they can turn to that will provide support.

I support the comments that Senator Sarah Hanson-Young made in relation to humanitarian visas. That was something that was crying out for attention in this inquiry. These women not only are not aware of the support network but tragically are scared that they are the ones who will be returned to their country of origin. They are particularly scared because in many of these instances, because of the cultural practices and traditions of their countries, they will be blamed for the marriage collapsing. With that blame they are ostracised; with that blame they will be rejected by their own family. So if they are returned to their country of origin, they will be penalised by their family, whether formally or informally, will be blamed for the collapse of the forced marriage and will incur whatever the consequences may be.

In many of these instances it is fair and reasonable to suggest that they will be discriminated against on their return. It is not a black-and-white scenario where they come here to be married and the marriage does not work so they should be returned to their country of origin. They will be discriminated against. There is no question that they will face prejudicial behaviour and in many cases rejection from their own immediate family. There is a need for us to consider a carving off, if you like, in part of the visa framework of a humanitarian allocation for women who are in this incredibly difficult circumstance so that consideration can be given to them to stay here with clearly strong support from various agencies. They could stay here and not be forced to return home to what would be quite difficult circumstances.

I support this legislation. I am concerned that there may be unintended consequences, but I strongly support it. I look forward to further consideration of other ways in which we can strengthen the framework to support women who may well find themselves in what could be loosely described as forced marriages.