George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

Thank you, Madam Acting Chairman. I completely understand what Senator Madigan is trying to achieve and I am entirely in sympathy with it. I have spoken to Senator Madigan about it, however, like the government, we simply cannot see that what Senator Madigan seeks to achieve by his amendment would not already be dealt with by the existing section 270.4 of the Commonwealth Criminal Code. I have engaged Senator Madigan; I have sought to see how it is that he feels that the existing provisions of the Commonwealth criminal law do not already cover that which he seeks to achieve by his amendment. I must say, I am at a loss to see how it is that this amendment does not address an issue that is already part of the law, so for that reason the opposition, respectfully, will not be supporting it.

The TEMPORARY CHAIRMAN: The question is that amendments (1) to (4) moved by Senator Madigan on sheet 7333 be agreed to.

Question negatived.

by leave—I move opposition amendments (4) and (5) on sheet 7339 together:

(4) Schedule 1, item 12, page 10 (line 21), omit the heading to subsection 270.7B(2).

(5) Schedule 1, item 12, page 10 (line 22) to page 11 (line 4), omit subsections 270.7B(2), (3) and (4), substitute:

Note: For the avoidance of doubt, an individual may commit an offence if the person is a party to the marriage.

This is not an issue of definition; this is an issue of the substance of an offence. It is the proposed section 270.7B that would be added to the Commonwealth Criminal Code by this legislation. This is the provision that creates the offence of forced marriage, and let me take you through it. By proposed subsection (1), an offence is created where a person engages in conduct that causes another person to enter into a forced marriage as the victim of the forced marriage. That is the significant provision of the proposed section 270.7B, and the opposition supports it.

Our amendment would omit subsections (2), (3) and (4). Subsection (2) is a curious provision, which provides that a person commits an offence if they are a party to the marriage, the marriage is a forced marriage, and the person concerned is not a victim of the forced marriage. So, it provides that the spouse of a victim of a forced marriage commits an offence. I will come back to it.

Subsection (3) imposes strict liability in relation to that, and subsection (4) applies an exclusion so that subsection (2) does not apply if the person has a reasonable excuse.

We propose the omission of subsection (2)—that is, the offence of being a party to a forced marriage—for a very simple reason: that if a person is a party to or the other party of a forced marriage then it is very difficult to conceive of a set of circumstances in which they are not already in breach of the principal offence—that is, the offence created by subsection (1). It would be extremely difficult to imagine that a person who enters into a forced marriage is not a part of the conduct which causes the innocent victim to be in the forced marriage. So, in our view, subsection (2) is entirely unnecessary. We propose as well the insertion of a note to subsection (1), which would provide:

For the avoidance of doubt, an individual may commit an offence if the person is a party to the marriage.

So, if there were any residual reason to believe that this provision is necessary to fill what might be thought to be an unintended lacuna in subsection (1), then that is removed by the insertion of the clarifying note that we propose to be inserted at the end of subsection (1). As well, I should point out that there are no circumstances I can conceive of in which the existing accessorial liability—that is, the provisions of part 2.4 of the Commonwealth Criminal Code—would not apply to extend the liability for the offence created by subsection (1) to a person who is a non-innocent party to a forced marriage.

On the other hand, let us suppose that I am wrong about that. It is almost inconceivable that this could happen, but let us suppose there is a case where a husband, let us say, engages in a marriage ceremony with a woman and he is genuinely and innocently unaware that she, because of, let us say, duress on the part of her parents, is not a willing party to the marriage. Now, as I say, it is very difficult to imagine in a practical sense how that could ever be. But let us say that the other party to the forced marriage was entirely unaware of and innocent of any of the coercion of his proposed spouse. Well, if the person were entirely ignorant of, unaware of, innocent of, any coercion of his proposed spouse, then how has he committed a crime? Where is the fault element? It is a terrible situation, of course, for the victim, but the person who has done the wrong is the person or people who are doing the coercion.

The reason, I suspect, that we have subsection (3), which imposes strict liability on the other party to a forced marriage, is that that is the only set of circumstances in which it is even theoretically possible that a party to a forced marriage could be caught by subsection (2) but not by subsection (1). And, if a person who is party to a forced marriage is completely unaware, completely innocent, completely ignorant, of the coercive circumstances, how have they committed a crime? If they are not unaware, if they are not ignorant, if they are not innocent of the coercion, then they have already committed the crime provided for by subsection (1). We should be very, very slow to impose strict liability for criminal offences but particularly in circumstances like these, where, if you analyse the provision, the requirement of strict liability is being sought to be invoked because the proposed offence could only theoretically apply when the person against whom the criminal conduct is alleged has done nothing wrong. Others have, but he has not.

Subsection (4) is merely confusing, because, having said that subsection (2) imposes strict liability, subsection (4) says it does not apply 'if a person has a reasonable excuse'. Now, this is a preposterously confused piece of legislative drafting. On the one hand, you have a conduct criminalised, where the person is innocent of any culpability, by the imposition of strict liability upon them; and then, in the very next subsection, the provision says, 'But if you have a reasonable excuse it doesn't apply to you.' So it is preposterous; it is confused. And, as I say, if a person who is involved in coercive conduct to bring about a false marriage, whether as the other party to the marriage, as a parent, as an employer or as a person who stands in any other relationship to the victim, that conduct would always be caught by subsection (1), the principal offence created provision, which the opposition supports.