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Monday, 25 February 2013
Page: 799


Senator BRANDIS (QueenslandDeputy Leader of the Opposition in the Senate) (21:06): The Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012 amends the Criminal Code Act 1995 to insert offences of forced labour, forced marriage, organ trafficking and harbouring a victim. The amendments also seek to ensure 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 existing offences to deceptive recruiting and sexual servitude to non-sexual servitude and all forms of deceptive recruiting and increases penalties for debt bondage offences. It also amends existing definitions to broaden the range of exploitative conduct that is to be criminalised.

The Crimes Act is to be amended to increase the availability of reparation orders to individual victims of Commonwealth offences. Consequential amendments are proposed to the Migration Act, the Proceeds of Crime Act and the Telecommunications (Interception and Access) Act. Although these offences are described as new, most amount to definitional changes to existing offences in divisions 270 and 271 of the Criminal Code. The important new offences concern the expanded definition of servitude, to which I shall return, organ trafficking and forced marriage.

Organ trafficking is currently covered, though not exclusively, by the human trafficking provisions. These amendments have the support of the coalition and it is to be hoped that the cases to which they will apply will be extremely rare. There appears to have been only one discontinued investigation in Australia, although it is estimated that globally up to 15,000 kidneys are bought and sold illegally each year. The trade is allegedly substantial in China, Pakistan, Egypt, Colombia and the Philippines.

The bill also introduces prohibitions against forced marriage. According to some estimates, there may be up to 1,000 forced marriages a year involving Australians and it appears to be a growing problem. The personal trauma that can arise from such practices was graphically portrayed on the ABC's Four Corners program almost exactly a year ago, and similar examples have been aired in several community forums since then. The current offences against people trafficking and sexual servitude may not provide sufficient coverage, and it seems clear that an explicit prohibition is required. The coalition therefore strongly supports the introduction of a new offence to deal with this problem.

However, the bill also includes an offence of strict liability for being a party to a forced marriage; that is, if the prosecution establishes that a person was forced into marriage, the other party is presumed to be guilty of an offence, unless he or she can establish a lawful excuse. This is sought to be justified on the basis that the elements needed to establish the excuse would usually lie peculiarly within the knowledge of the accused and it would be significantly more difficult for a prosecution to disprove than for the accused to establish. However, the imposition of strict liability in criminal matters effectively abrogates the presumption of innocence and the right of the accused to remain filed to trial. The justification offered by the government does not take account of the great reluctance of the courts to draw inferences from an accused person's failure to give evidence in the very limited circumstances in which that is permitted.

It is astonishing that these fundamental rights and presumptions are not addressed in the bill's statement of compatibility with human rights, other than the bland and erroneous statement:

The provisions of the Bill do not affect rights to a fair trial and fair hearing, the presumption of innocence and minimum guarantees in criminal proceedings, nor do they affect existing legislation relating to procedural fairness.

That statement, authored by the Attorney-General's Department, is plainly and entirely wrong, and it is a professional disgrace to whoever wrote it that it should have been included. The proposed strict offence of being a party to a forced marriage, in fact, does most of those things, as I shall explain in the committee stage of the debate. In my view, the statement of compatibility, by focusing on the right to privacy, which has always been hedged by probable cause, misstates the position while ignoring fundamental rights with which we can permit very little interference.

Last year when the Human Rights (Parliamentary Scrutiny) Bill was debated in the Senate, I explained why the coalition opposed the introduction of statements of compatibility. I said, if I may be excused for quoting myself:

… there is risk that a declaration of compatibility (or incompatibility) … might be regarded as … conclusive. In fact, it is merely the expression of the opinion of the Executive Government. The whole point of enhancing Parliament's ability to scrutinise the human rights impact of legislation is to empower the Parliament rather than the Executive; it is the opinion of the former, not the latter, that matters in deciding whether legislation is human rights compliant.

Indeed, this government has given itself a free pass on the human rights implications of the bill. Unfortunately, it was introduced before the Joint Committee on Human Rights was seized with responsibility to examine it. However, it is likely that the wielder of rights supposedly conferred by international instruments, which so blinded the authors of the statement of compatibility, would have had the same effect.

The Senate should not, under any circumstances, interpret these remarks to mean that the coalition sympathises with those who are complicit in forcing a person into a marriage. We support the introduction of that offence. We also propose an amendment to remove any doubt that that offence would apply to a party to a marriage. There is no doubt that forced marriage is akin to slavery and that it is our responsibility as legislators to ensure that our law enforcement agencies have the laws and the means with which to deal with it. I caution, however, that there are many practices against which we as a society set our faces without abolishing the fundamental rights of an accused person.

I turn now to the existing offences of slavery and enforced servitude, which are to be broadened to include forced labour rather than sexual servitude. The intention of the amendments is to capture the apparently increasing incidence of slavery-like conditions outside the sex industry—for example, in hospitality. The existing definitions, which require the use of force and threats to maintain the condition of servitude, will now include the use of coercion, threat or deception. Coercion will include duress, psychological oppression, abuse of power or taking advantage of a person's vulnerability. The prohibition does not extend to conditions justified or excused by or under a law.

The explanatory memorandum states that it also does not extend to lawful detrimental action under standard relationships between employers and employees. However, the extent to which this is the case is not clear. The terms 'psychological oppression' and 'taking advantage of a person's vulnerability' have a strong subjective element, and it is not inconceivable that they might even be alleged in an industrial relations context for a collateral purpose. Evidence to the Senate Standing Committee on Legal and Constitutional Affairs on duress indicated that a significant number of AFP investigations under the existing provisions referred to the Fair Work Ombudsman.

Duress and abuse of power are concepts that are well understood at common law and in equity and applied in the courts. Psychological oppression and taking advantage of a person's vulnerability might be indicators of duress or an abuse of power, but listed, as the government proposes to do, as separate criteria they risk watering down the definition and taking the offence into unintended areas. In the coalition's view, the other criteria of forced duress, detention and abuse of power do provide legal certainty, which is important given the potential consequences of a contravention and to avoid a potential for the arbitrary use of the legislation.

The penalties to be imposed range from four years to 25 years imprisonment. These are broadly within the spectrum of existing penalties under the current provisions of the code and the coalition does not oppose them.

The coalition yields to nobody in its condemnation of the practices which are the subject of the bill, which is why we support the bill. Sadly, the traffic in human beings continues in one form or another, some 206 years after the Royal Navy put an end to the transatlantic slave trade. The offences contemplated by the bill cannot be tolerated in any civilised society and, with the exception of the defective provisions I have noted and for the reasons I have explained, the coalition lends it our support.

As I have said, I will elaborate further upon those defective provisions when the bill reaches its committee stage. However, I take this opportunity to reiterate my view that the proper discussion of human rights in this parliament must transcend the self-congratulatory adoption of fashionable causes or focusing on who is more antidiscriminatory than whom. It also involves the scrutiny of bills such as this, which clothes itself in the language of human rights, to locate the true implications for those who might find themselves, rightly or wrongly, accused and at the mercy of the enormous prosecutorial power of the state. That the drafters of this bill—the Attorney-General's Department, the Human Rights Commission and the raft of stakeholders who hold themselves out as the vanguard of human rights—could be so uniformly heedless of the abrogation, contained in this bill, of the presumption of innocence and the right to silence speaks volumes about the current quality of the human rights debate in this country.