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

May I have one last valiant attempt, then, to persuade you? The way the construction of the forced marriage defences work is that strict liability applies only to the one element of the offence, which is being party to a forced marriage. We have established that. The element is that the person charged with the offence was not themselves a victim of the forced marriage; call that Person A. The use of strict liability means the prosecution—you would be more familiar with this than I am—must prove that the person charged was not a victim but does not need to prove any fault element for this physical element of the offence. Therefore strict liability has been applied to this element to avoid prosecution being required to prove that the defendant knew—and this is the point, even if they did not know—or was reckless about the fact that he or she was not the victim of the forced marriage. The issue which surrounds the knowledge element is that Person A may have been recklessly indifferent to others who caused A and B to wed.

In any event, if Person A did know that someone was causing the marriage, then the legislation seeks to capture their consent to the marriage on the basis that they are aware, or at least recklessly indifferent to, the fact that someone has caused the marriage—in other words a forced marriage in this instance. I would have thought, as you would think, that if you were aware or were recklessly indifferent to the fact and consented to a marriage where you knew there were others who had caused the marriage to occur through circumstances, that you would not go ahead with it. I certainly would not go ahead with it and I am confident that anyone in the opposition or on this side of politics would not go ahead with it, but in some circumstances it certainly appears to have happened.

On that basis I think they are culpable by acquiescing and going ahead with that marriage. Strict liability has been applied only to this element to avoid the prosecution being required to prove the defendant knew or was reckless about it. It is only that one element, and this is a question of fact. It would not be appropriate to require the prosecution to demonstrate the defendant was aware of a substantial risk—that they are not a victim. It would be very difficult to obtain evidence showing the defendant's state of mind, particularly in that circumstance, and the effectiveness of the offence would be undermined if the prosecution was required to prove just that one element. The prosecution would still, though, be required to prove that the person charged intended to be a party to the marriage and was reckless about whether it was a forced marriage.

So it would still be a requirement—in other words, the onus would not shift—in this instance where the prosecution would still be required to prove that the person charged intended to be a party to the marriage and was reckless about whether it was a forced marriage. That is my best shot. If we do not agree we should get on with it.