Joe Ludwig (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Hansard source

I will be brief then. The nub of the argument seems to centre on, as I understand Senator Brandis's view, whether or not the person—person A, not the victim—knew. As I understand the way the clause reads, the spouse knew it was a forced marriage, and so the knowledge, in fact, could be present. But in this instance—at clause 270.7B(1)(b)—the focus is on the conduct which causes another person to enter into a forced marriage as the victim of the marriage.

It is not a question of knowledge but of cause. A spouse may know that it was a forced marriage, but did not cause it to be a forced marriage. That is in contemplation, and you could envisage circumstances where person A did know that it was a forced marriage and they did not cause it to be a forced marriage, but nonetheless they did acquiesce to the marriage. So someone else—be they a person interested in the marriage happening—caused the victim in this instance to enter the marriage, whilst the person A, who was not the victim, did not cause it to occur and may also have known about it.

On that basis I could imagine an argument around knowledge, but in this instance the reason we are putting is that you could look at either conspiracy or aiding and abetting offences. I am not sure they would go far enough in this instance to capture person A. We are trying to put beyond doubt circumstances which allow the AFP to prosecute successfully where there are those subtle coercive events that occur that create the offence.

In terms of the issue around the second part—dealing with the knowledge element—which I just came in and picked up, so forgive me if I am wrong about this: these are not unsurprising provisions. I go back to the Criminal Code itself—particularly around division 309, which contains a number of drug offences involving children. In those offences strict liability applies to the physical element in each offence where the individual is a child. This means that the prosecution would need to prove that the individual was a child, but not that the defendant knew this. Again, the defence of mistake of fact would be available to the defendant.

There are circumstances where these have been used before, particularly those issues around drug offences and, if my memory serves me right, also in respect of issues around the Child Sex Tourism Bill—I think it is one that you spoke on in 2010, Senator Brandis. I think this issue was included within it and not raised in it. They might be materially different in your view in this circumstance, but the offence and the shifting of the burden were the same, and the use of the defences were also very similar in that bill.

So these are matters that you could now confidently say that both the opposition, when they were in government, and this government, have used in legislation to ensure that we do provide our law enforcement agencies with effective legislation to deal with a range of circumstances—particularly those types of heinous crimes, and including these ones as well. If that has not covered all of it, then please let me—