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Monday, 20 August 2012
Page: 9283

Mrs MARKUS (Macquarie) (17:30): I rise to speak on the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012, which offers amendments to the Criminal Code Act 1995, to include offences associated with forced labour, forced marriage, organ trafficking and harbouring a victim.

We are fortunate in Australia that slavery, trafficking and associated crimes are not common. It remains beholden to this parliament, however, to strive to protect the vulnerable people in our society from abuse, irrespective of their gender, age, socioeconomic background or ethnic identity. These crimes are unacceptable in any modern, progressive state, and the legislative response of the Australian parliament must firmly assert the complete rejection of these behaviours by Australian society.

I recently met with two constituents in my electorate, Mrs Helen Levingstone and Mrs Elizabeth Sorrell, who are activists with the Stop the Traffik action group. Like many other members of my electorate, Helen and Elizabeth were tremendously concerned that the issue of human trafficking, slavery and exploitation be proactively addressed by this House, and were keen to impress upon me their belief that it is the responsibility of all Australians to be vigilant defenders of the basic human rights diminished by slavery and slavery-like conditions.

This bill aims to clarify the nature, circumstances and conditions of slavery and slavery-like conditions, inclusive of forced marriage, labour and organ trafficking. Expanded prosecution and investigative powers contained in the legislation will assist the efforts of Commonwealth law enforcement and legal agencies, seeking to fight these crimes. Similarly, appropriately harsh penalties will serve as a deterrent to those seeking to abuse and manipulate others.

The bill proposes to amend the Crimes Act 1914 to increase the availability of reparation orders to victims of Commonwealth offences and proposes consequential amendments to the Migration Act 1958, the Proceeds of Crime Act 2002 and the Telecommunication (Interception and Access) Act 1979.

Although the coalition supports the principles established in this bill the amendments to its current form may be necessary, and this parliament should await the review and recommendations of the Senate Standing Committees on Legal and Constitutional Affairs and the House of Representatives Standing Committee on Social Policy and Legal Affairs. Wiser counsel and reflection would have brought this government to realise that the seriousness of both the issues that this bill deals with and the tough measures that it introduces, necessitated a pause until the findings of both committees could be reported and, if necessary, amendments made to this bill, rather than pushing forward, as they do now, to introduce this bill through this House before these processes have concluded.

Thematically, this bill addresses many very serious issues and its purpose is commendable. Critically, the proposed amendments recognise the deeply complex nature of exploitative relationships between the perpetrators who create, and the victims of, slavery or slavery-like conditions. These interactions often occur quietly, unnoticed by even the nearest neighbours, and may involve established patterns of intimidation and domination. This bill will criminalise the concealment, harbouring or trafficking of victims of slavery or slavery-like conditions.

Importantly, these amendments will also outlaw associated behaviours intimately connected to forced marriages, criminalising the use of threats, deception or coercion to bring about marriage or a marriage-like relationship. Whilst it is tremendously important that Australia's body of legislation clearly prohibits the use of duress, force or intimidation to bring about marriage or a marriage-like relationship, it is equally important that legislation, including this bill, carefully and explicitly identifies specific offences with close consideration of the possible impact of the law in question. With this in mind, I draw the House's attention to subsection 2 of section 270.7B of the bill. This subsection deals with forced marriage offences and states:

(2) A person commits an offence if:

(a) the person is a party to a marriage (within the meaning of section 270.7A); and

(b) the marriage is a forced marriage; and

(c) the person is not a victim of the forced marriage.

According to subsection (4) of the same section, 'Subsection (2) does not apply if the person has a reasonable excuse' for entering into the marriage. The notes attached to this subsection, however, place a reverse onus upon the accused to prove their own innocence, stating:

A defendant bears an evidential burden in relation to the matter in subsection (4).

The second party to a marriage, where the first is found to have been forced into the marriage, is therefore presumed to be guilty of a very serious criminal offence unless he or she can establish evidentiary proof otherwise. Surely this represents a tremendously troubling precedent that sits very uncomfortably within our legal system.

Given the proposed lengthy custodial sentences of up to and including seven years, more careful considerable of the casual allocations of onuses of proof should have been undertaken by this government. More importantly, this government should have waited until after the Senate Committee on Legal and Constitutional Affairs and the House of Representatives Committee on Social Policy and Legal Affairs had thoroughly investigated and expertly reviewed the proposed legislation. This portion of the legislation must be very carefully examined and the possible and long-term repercussions of its implication explored.

This bill proposes to created several standalone offences that criminalise behaviours or acts associated with the creation and promotion of slavery or slavery-like conditions. Organ trafficking is a disturbingly frequent internationally problematic issue. Many thousands of organs are bought in the black market every year, and the trade is believed to be particularly prolific in areas of North Africa, South America, China and the Asia Pacific. Organs may be sold for several hundred thousands of dollars by the criminal enterprises that sustain this trade—the victims receiving only a very small proportion of these sums in return for their body parts.

It is estimated by the World Health Organization that one in 10 transplant procedures involve organs obtained on the black market—a figure that continues to rise rapidly. The revolting exploitation of vulnerable people by organ traders is truly horrific, most commonly occurring in impoverished areas where the poor are easy prey to mercenary butchers. The consent or refusal of victims to participate is immaterial. The harvesting of human organs for sale is a terrible crime against humanity. This bill will create a standalone offence, criminalising the traffic of a victim to or within Australia for the removal of organs.

This bill will also create a standalone offence for forced labour, with explicit reference to conditions in which a reasonable person in the position of the victim would not consider themselves free because of the use of threat, coercion or deception. These amendments will clarify and expand existing definitions that require the use of force and threats to maintain the condition of servitude. The use of duress, psychological oppression, abuse of power and exploitation of vulnerability will now be held to denote the use of coercion.

The seriousness of these offences will be recognised by penalties that include custodial sentences of up to 12 years. Whilst the principles that guide this portion of the proposed amendment are commendable and indeed are an important progressive legislative step, it is important that the appropriate review of the bill's language, direction and specified intent be undertaken. Portions of the bill are open to particularly broad interpretation and equally broad and unspecified context. How, without further clarification, is one to identify what specific behaviour and circumstances would denote that a party was taking advantage of a person's vulnerability?

It is not reasonable to expect this House to pass such vague terminologies into law without far more careful consideration of the potential repercussions in the courts. Once again, the government should have waited until after the Senate Legal and Constitutional Affairs Legislation Committee and the House of Representatives Standing Committee on Social Policy and Legal Affairs had thoroughly reviewed the bill's contents, implications and practical enforcement issues.

This bill will clarify and expand existing legislative frameworks which have been developed with the express purpose of protecting vulnerable people in Australia and overseas against exploitation. Stand-alone offences are here created, explicitly criminalising organ trafficking and forced labour. Existing legislation is broadened in this bill to include all forms of servitude and deceptive enticement, in addition to existing sexual servitude offences. Forced marriage is an increasingly global issue and it is entirely appropriate that this House support legislation that seeks to combat such a destructive trend and provides explicit legal protections for people vulnerable to exploitation, be it by a stranger, a family member or a loved one.

The penalties this bill will impose for all these offences are heavy, carrying the possibility of substantial jail time, but this reflects the seriousness of these crimes. This bill has much to commend it and marks a progressive step in the evolution of the collective Australian legislative body. The coalition, however, is certain that such important legislation must be the subject of very careful review and will reserve the right to move amendments based on the recommendations of both Senate and House of Representatives committees.