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Monday, 25 February 2013
Page: 802

Senator MADIGAN (Victoria) (21:17): I rise to speak about the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012 and the removal of our recognition in law of the reprehensible crime of sexual servitude in Australia. There are many very important aspects of this bill which will add to the wide-ranging scope and strength of the Criminal Code Act 1995, the Crimes Act 1914 and other complementary acts.

However, I see in this bill an unintended consequence which may stunt or curtail the course of justice for victims of sexual servitude across Australia. The bill adds new definitions and removes old ones. It clearly defines 'forced labour' and 'forced marriage' but waters down the definition of 'sexual servitude'. It does this by likening sexual servitude to any other form of servitude—when in fact it is quite separate, unique and reprehensible. The Coalition Against Trafficking in Women Australia points out:

… the sex industry might be regulated alongside other industries providing ‘labour’ or ‘services’, as if prostitution has historically posed no special risk with regards to the trafficking and enslavement of women and children.

Prostitution has been widely legalised across Australia. I am not discussing that today but rather what separates sexual servitude from other criminal activities. I am discussing the inherent dignity of all people who work in the industry and the need to ensure our Criminal Code protects and upholds this apparently elusive concept.

It is important for those in this place to know what sexual servitude is. It is critical, when considering this bill, to understand why sexual servitude should not simply be lumped under the definitions provided in proposed sections 270.5, 270.6 and 270.7. Family Voice, an organisation which has been very active in speaking out on this and many other issues, illustrates the distinction quite clearly. Their submission to the inquiry of the Senate Legal and Constitutional Affairs References Committee into this bill said:

Sexual servitude is inherently different from other forms of servitude because it involves forced acts of sexual intimacy—the violation of a woman's body, essentially repeated acts of rape. This is not the same as being forced to perform domestic labour or work in a sweat shop.

They go on to point out that criminal law generally treats rape and sexual assaults as crimes which are distinct from other forms of assault. So I ask: why should we not continue to do so in the Criminal Code? Why should we repeal all references to sexual servitude from the code?

This place should be aware of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, which was written in 2000 to supplement the United Nations Convention against Transnational Organised Crime. Article 3 outlines what it means to be 'trafficking in persons'. It says:

“Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs …

Article 3 goes on to say:

The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a)—

the paragraph I just read—

of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used …

The UN is quite clear about this—clearer on this than on many other issues it tasks itself to deal with.

It is important that we recognise that and amend this bill to truly reflect the severity of sexual servitude, to give it the legislative recognition that it deserves.

In many debates that enter this place, we hear two distinct sides. We as representatives of the people are lobbied by activist organisations and are generally kept well informed as to how we should vote on any particular issue. Mr Acting Deputy President, that has not been the case with this legislation. You are undoubtedly aware of the value I place on a worker's rights, including the right to an adequately unionised workplace. However, who represents the sex worker? Who upholds their dignity at work? Whatever you may believe about the morality of their line of work, I would like to see a day when businesses do not profit from the exploitation of vulnerable men and women. Until that day comes, we must ask who will protect their right to maintain and restore their inherent human dignity? Not the Eros Foundation; not the Scarlet Alliance. These organisations are industry groups, attempting to ensure that their industry is not dragged through the mud so much that there are calls for it to be re-criminalised. No, it is up to us in this place and those in the other place. We must ensure that those who claim to be exploited, those who are being coerced, threatened or deceived into sexual servitude are categorically protected by all the appropriate layers of the law.

I have circulated amendments to this legislation, not to complicate it or to confuse the matter, but to correct what I believe is an unforeseen consequence. I am concerned for the victims of sexual servitude and want to ensure that they are given as much of a legal platform as possible in the court of law. Proposed section 270.4, coupled with proposed section 270.7, will possibly restrict a victim's ability to successfully litigate. It is important that a victim of sexual servitude is not told that they have no recourse to litigation because 'it was in the contract'. Unfortunately, that is essentially what this legislation will say to certain victims should it not be amended.

It is for this reason that I have offered a number of amendments to this bill. Although I support this bill in principle, I ask all senators to support these amendments, which will strengthen the law.