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Monday, 25 February 2013
Page: 806


Senator CASH (Western Australia) (21:34): I rise to speak on the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012. At the outset, I will reiterate that, while the coalition will not be opposing this legislation, we continue to have concerns with a number of issues to do with the wording of the bill as it is currently drafted. The bill amends the Criminal Code Act 1995 to insert offences of forced labour, forced marriage, organ trafficking and harbouring a victim. Approximately 18 months ago, I was in New South Wales visiting a safe house for women who have been trafficked here for sex and I was briefed in relation to the first identified case of a young girl who had been brought into Australia so that one of her organs could be harvested.

The amendments in this proposed bill seek to ensure that the slavery offence applies to the unlawful conduct of individuals who by their actions render or cause a person to be a slave and includes conduct involving a person who is already a slave. The bill extends the application of existing offences of 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 proposed bill will amend the Crimes Act 1914 to increase the availability of reparation orders to individual victims of Commonwealth offences. Consequential amendments are proposed to the Migration Act 1958, the Proceeds of Crime Act 2002 and the Telecommunications (Interception and Access) Act 1979. Although the proposed offences are described in the minister's second reading speech as new, most amount to definitional changes to existing offences in divisions 270 and 271 of the schedule to the Criminal Code Act 1995.

Putting aside the definitional changes for the moment, the bill proposes important new offences relating, as I have already stated, to organ trafficking—and, yes, it does happen in Australia—and forced marriage. I note that the explanatory memorandum is expressed in terms that make it abundantly clear that slavery and people trafficking are among the most abhorrent of all crimes. These heinous offences are major violations of human rights and often result in traumatic and lifelong consequences for victims and their families. Both the coalition and the government are committed to combatting all forms of slavery and people trafficking by ensuring that there is a strong regime of criminal offences in place that are relevant and responsive to emerging issues.

On 19 June 2012, the Senate referred the provisions of this bill to the Senate Legal and Constitutional Affairs Legislation Committee. I note that coalition senators in their additional comments expressed reservations about certain aspects of the committee's report regarding the current wording of the bill.

As stated in the coalition senator's additional comments, coalition senators were concerned about the very broad definition of the term 'coercion' in the bill. I note that the addendum to the explanatory memorandum explicitly states that 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.'

I would argue, however, that the breadth of the term 'coercion' in its present form will allow a legal construction which encourages ambiguity and this ambiguity will of course lead to litigation. There is little doubt that the ambiguity and uncertainty which is apparent in the current drafting in the bill, as it relates to the use of the word 'coercion', will be the subject of litigation. This will mean that it is the courts and not the parliament which are the final arbiter of the meaning of such an important term in the context of this legislation. I also note that coalition senators recognised that the failure to precisely define the meaning of the word 'coercion' leaves open the possibility that a broad range of relationships in which power is unequal might be characterised by the courts as 'coercive'.

Coalition senators were also concerned at the broad way in which the bill provides the consent or acquiescence of the victim is not a defence to offences under the legislation. As they stated, 'clearly consent, which has been obtained through duress or force cannot be characterised as true consent'. But the bill, in its present form, does not appear to make the distinction between real and apparent consent. This distinction is highlighted by the way the bill deals with servitude and forced labour offences within marriage or a marriage-like relationship. There is a broad spectrum of unequal and undesirable power relationships within marriages in Australia, ranging from violent and coercive relationships to those where one partner exercises an inappropriate level of influence over the other partner. Clearly, at one end of that particular spectrum, behaviour should be criminalised and at the other end it should not. Coalition senators made the point that given the uncertainty which is evident in the way in which the legislation is currently drafted, it is very hard to discern where in that spectrum the legislation intends the line of criminality to be drawn.

Coalition senators found that when they delved into a number of aspects of the bill many stakeholders are confused or dissatisfied with the approach the legislation takes and believe that further work needs to be done to make clear the ambit and the scope of the legislation. In their conclusion, coalition senators recognised the intended objective of the bill, which is to clarify the law regarding slavery and servitude, but remained concerned that the practical operation of the bill in the real world will leave open significant questions of scope and definition, which will no doubt be the subject of expensive litigation which will need to be resolved by the courts. This lack of clarity and certainty is clearly not a satisfactory situation despite the stated intent of the government in introducing this bill.

As the coalition's spokesperson for the status of women, I have had the opportunity to meet with many stakeholders, in particular in relation to the trafficking of women for sex. I remain dismayed at the long-term destructive impact that these experiences have had on women. Approximately 18 months ago, I had the very humbling experience of visiting a safe house in New South Wales. There I met with women who had been brought into Australia believing that they had come here legally, only to be immediately placed into the illegal sex trade. I had, as I said, the very humbling experience of meeting with a woman who, thank goodness, we managed to get out of the illegal sex trade. She had been forced to service up to 20 clients a day, for little or no money.

We need to recognise that Australians, without a doubt, live in the luckiest country on earth. We therefore have an obligation to do everything within our power to empower our own citizens and those in source countries through education programs and through whatever legislative levers we have available, and more broadly by reducing poverty through our aid programs, to ensure that human life is recognised as being sacrosanct and decrease the currency of this insidious trade in people.

The recent history and actions of both sides of politics confirms that Australia has a regional leadership role to play in this area. I would like to acknowledge the significant and important achievements of the former Howard government in this area. The Howard government's response to people trafficking in the Asia-Pacific region included developing anti-trafficking initiatives between governments and providing aid to the region, which is aimed at alleviating the economic and social conditions that allow trafficking to flourish. In particular, the Howard government and the Indonesian government co-chaired two regional ministerial conferences on people trafficking and smuggling in 2000 and 2003. In October 2003, the former Howard government announced additional anti-trafficking measures and provided a $20 million program targeting sex trafficking in particular.

The program or package included a new Australian Federal Police unit, the Transnational Sexual Exploitation and Trafficking Teams; new visa arrangements for victims of trafficking; victim support measures, including counselling and legal and medical support to be administered by the Office for Women; improvements to legislation, making people trafficking punishable by up to 20 years in jail; and a promise to ratify the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. Notably, Australia was already a signatory to this treaty and the treaty was subsequently ratified in 2005.

In 2004, the former Howard government produced an action plan to eradicate trafficking in persons in support of its 2003 announcement.

In the last budget of the Howard government, a further $38.3 million over four years was allocated, including $26.3 million for new initiatives. Since then, the coalition has continued to recognise people trafficking as a serious criminal affront to human life and has supported a range of anti-people-trafficking measures, most of which have had a sex-trafficking focus.

The newly renamed human-trafficking teams of the Australian Federal Police are at the front line of tackling this continuing and unfortunately burgeoning problem. As a result of the political focus on this insidious trade and as a consequence of changes to the sex-trafficking laws, in 2008, the first person to be found guilty by a jury of holding sex slaves was a 44-year-old Melbourne woman, Wei Tang, who was sentenced to 10 years imprisonment. In that case, five Thai women were brought into Australia on the basis that they would work legally in the sex trade. However, once they were in Australia they were told by their criminal overseers that they had to pay off debts of $45,000 each by performing sexual acts for no pay.

People trafficking is a well-established and enormously lucrative business through the Asia-Pacific region, in particular from China, Thailand and Korea. Sadly, our reality as Australians is that Australia is a destination country for persons trafficked out of South-East Asia. I note that there are several reports of immigrants, particularly from India, the People's Republic of China and South Korea, who voluntarily migrated to Australia to work but who were later coerced into exploitative conditions by people closely connected to the criminal people-trafficking racket.

Whilst it is recognised that some of these women travel to Australia under the impression that they will be working in the legal sex trade, a number come here under student visas believing that they will be studying and attending college or university classes or working in their professions, as their visa conditions would dictate. It is only when they reach Australia that their unfortunate and sometimes life-threatening fate becomes known to them—that is, they have been trafficked to Australia for the purpose of being a sex slave. They are told that now they are in Australia they must work to pay off so-called debts that they have supposedly incurred as payment for their successful passage to Australia. It is interesting to note that the Anti-People Trafficking Interdepartmental Committee has reported that all identified suspected victims of people trafficking, including sex trafficking, have entered Australia on valid visas, but evidence of visa fraud was later identified.

Because of its geographic location, Australia is in a unique position when it comes to combating human trafficking. Unlike Europe and Asia, Australia's borders are clearly geographically defined, and until the current government changed the visa entry rules it was difficult to cross to Australian shores without being detected.

People trafficking for the sex trade is an insidious crime. It threatens the lives of its victims. The Australian government, regardless of who is in power, must continue to take action by developing practical initiatives in an attempt to put an end to sex trafficking and other forms of trafficking and slavery in Australia. It is critical that there be bipartisan support for doing what is practicable and possible to stop people trafficking by reducing the appeal of Australia as a destination country for trafficking, by strengthening legislation in the area and ultimately by making the business of trading in people less profitable and therefore less attractive. I am sure that all senators will acknowledge that it is completely unacceptable for even one person to fall victim to this heinous crime of people trafficking. The coalition believe that Australia has a very important regional leadership role to play in this area, and we will continue to work with the government to combat this hideous crime.

In conclusion, the coalition recognise the government's attempts to clarify the law regarding slavery and servitude, but, as set out in the coalition senators' comments in the Senate committee inquiry into this bill, we remain concerned that the practical operation of the law as a consequence of the uncertainty and lack of definitional clarity will leave open many questions of scope and intent which will necessarily need to be resolved in expensive litigation. This is clearly not a satisfactory outcome to such an important issue, which goes to the heart of people's personal freedom and their fundamental human rights.