David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Hansard source

I begin by noting that the opposition are indeed supporting the bulk of this legislation. But of course, Senator Brandis, you will, I am sure, not be surprised to learn that the government is not supporting the amendments proposed by the opposition. Let me address myself to that and endeavour to change your mind.

Items (1) to (3) of the amendments proposed by the opposition would, as articulated by Senator Brandis, remove the concepts of 'psychological oppression' and 'taking advantage of a person's vulnerability' from the definition of coercion proposed by the bill. Under those proposed amendments, coercion would be defined to include only coercion by force, duress, detention or abuse of power.

Items (4) and (5) of the opposition's proposed amendments would remove one of the two proposed offences of forced marriage contained in the bill—that is, the proposed offence of being a party to a forced marriage—and I think it is probably appropriate that I speak to that now as well. That offence would capture the conduct of a person who is a party to a forced marriage, other than the victim, but who did not necessarily cause the victim to enter into a forced marriage, unless they have a reasonable excuse. While the opposition's proposed amendments insert a note, following the proposed offence of causing a person to enter into a forced marriage, to make it clear that a person who is a party to the marriage would be captured, the effect of removing the offence of being a party to the forced marriage would mean that, in order to be guilty of an offence, a person who is not the victim to the forced marriage would have had to have caused the victim to enter into the marriage—that is, the opposition's proposed construction is much narrower.

The definition of coercion proposed by the bill is designed to bring Australia's legislative framework further into line with our obligations under the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children. Under article 3A of this protocol, 'trafficking in persons' is defined as:

… 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 purposes of exploitation.

Investigations into slavery, slavery-like conditions and trafficking offences have revealed that the exploitation of many victims in Australia does not involve abduction or violence or even physical restraint. Rather, offenders often use subtle, non-physical means to obtain a victim's compliance such as psychological oppression or taking advantage of a person's vulnerability. It is in these circumstances that it has proved challenging to convince juries that the offender's conduct constitutes the offence. Accordingly, the government does not support the opposition's proposed amendments to the definition of coercion.

In relation to forced marriage offences, in the government's view it is important to retain the offence of being a party to a forced marriage, in addition to the offence of causing a person to enter into a forced marriage, in order to ensure that the entire range of inappropriate behaviour relating to forced marriage is captured and criminalised. If the opposition's amendments were to proceed, there may be circumstances where a party to a marriage, person A, is aware that the person they are marrying, person B, is being forced into the marriage, but are able to escape criminal liability simply because they did not engage in conduct that caused person B to enter into the marriage and therefore their actions did not meet the elements of the offence of causing a person to enter into a forced marriage. Although they did not cause person B to enter into the forced marriage, person A's conduct may nevertheless be significantly inappropriate and warrant criminal sanction. Importantly, as noted in that example, per proposed section 270.7B(4) of the bill, the defence of reasonable excuse would apply to person A.

In terms of the definition of coercion, the situation of many victims in Australia does not conform to the popular image of slavery, slavery-like practices and trafficking involving abduction, violence and physical restraint; rather, offenders often use subtle non-physical means to obtain a victim's compliance such as psychological oppression or taking advantage of a person's vulnerability. Law enforcement agencies have, as I have already indicated, reported difficulties in successfully prosecuting cases where the offenders have used subtle coercive conduct. The definition of coercion proposed by the government in this bill is intended to capture both physical and non-physical coercive conduct—therefore capturing the broadest range of exploitative behaviour. The definition of coercion proposed by the bill will also bring Australia's legislative framework further in line with our international obligations. I note with interest that, in her remarks, Senator Boyce gave examples of children being coerced into work early in the mornings or late at night. And I note that, under the opposition's amendments, this very act, this very sin that Senator Boyce points to, would not be covered, because you are removing concepts of taking advantage of a person's vulnerability.

Lastly, the government asserts that it is important that both the forced marriage offences proposed in the bill are retained. The government is sending a clear message that forced marriage is a crime, that those who perpetuate a forced marriage will face serious penalties and that those penalties will be in line with the seriousness of their crime. For example, it would be inappropriate for an individual who knew that their spouse was a victim of a forced marriage and who entered into the marriage willingly to escape liability simply because they did not cause the victim to enter into the marriage. Importantly, the offence of being a party to a forced marriage has been carefully drafted to ensure that it only captures serious, abhorrent conduct. As such, a person will only be guilty of the offence of being a party to a forced marriage if they are not the victim and if they did not have a reasonable excuse for entering into the marriage themselves.