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

by leave—I move opposition amendments (1), (2) and (3) together:

(1) Schedule 1, item 8, page 4 (line 8), omit paragraph (d) of the definition of coercion in section 270.1A.

(2) Schedule 1, item 8, page 4 (line 9), omit "power;", substitute "power."

(3) Schedule 1, item 8, page 4 (line 10), omit paragraph (f) of the definition of coercion in section 270.1A.

The effect of opposition amendments (1), (2) and (3) would be to omit two of the subcategories from the definition of coercion in section 271A. At the moment, coercion is defined to include the following conduct: force, duress, detention, psychological oppression, abuse of power and taking advantage of a person's vulnerability. The effect of the opposition amendments would be to remove from the definition the categories psychological oppression and taking advantage of a person's vulnerability.

And we do that for one very straightforward reason. The terms are vague, they are undefined, they are potentially without limit, and they do not refer to established legal categories or concepts with an established legal meaning. Force, duress and detention, and, arguably, abuse of power—although I must confess that is somewhat wide itself—do. In particular it is very difficult to imagine that conduct which constituted duress would not be psychologically oppressive given that the legal definition of duress established over more than centuries of case law involves the overbearing of the will of the person alleging the duress.

It is very difficult, equally, to see how 'taking advantage of a person's vulnerability' would not already fall within the concept of abuse of power, because the whole point of abuse of power is that in the relationship between two people there is a disparity of power so that one is in a position to take advantage of the other.

I stress that this bill is largely uncontroversial. It has the opposition's support. But, equally, it is important when we write new categories into the law that we do not conflate legal definition with rhetoric. Much as one would wish to see in an act of parliament statements in the nature of exhortation about the evils of the practice which is prohibited, statements in the nature of exhortation have no place in the definitions of concepts. The definitions of concepts, particularly where those definitions—as I said a moment ago—rely upon well-established legal categories, are more safely left alone or, if they are sought to be extended, they ought to be extended in a way that is not merely rhetorical but has meaning and actually lends something, adds something, to the reach of the statute by expanding the definition in a certain and specific way.

There is, in my view, nothing in proposed subparagraph (d) of the definition—'psychological oppression'—or subparagraph (f) of the definition—'taking advantage of a person's vulnerability'—that is not already captured by the other four subcategories. So all we are doing is introducing new and vague concepts without making this law, which the coalition supports, more effective. That is bad legislative practice.

So for those reasons, and only for those reasons—that these words add nothing but flummery, as it were—the opposition moves the amendments I have foreshadowed that would leave the definition of coercion as conduct which includes force, duress, detention or abuse of power.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to 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.

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

I want to stress again that Senator Feeney and the opposition are trying to achieve the same thing here; but those who may be listening to this broadcast who think that this is merely a verbal quibble should be reassured that it is a little more than that. The opposition support the bill but there are two respects in which we think the bill is badly drafted. I feel sorry for Senator Feeney, because he was reading out a script that no doubt was written for him by a junior officer of the Attorney-General's Department. And I have to say to you, Senator Feeney, with great respect, what you say is wrong—what you say is wrong in law. For you to be right—if we can deal with the definition question first; the definition of coercion—it would have to be the case that there were conduct which you say is criminalised by this act and which constitutes psychological oppression or taking advantage of a person's vulnerability which was not force, which was not duress as the courts have developed the meaning of that term over many, many years, which was not detention and which was not an abuse of power. One can well imagine that there may be psychologically oppressive conduct which was neither detention nor force. But how could there be psychologically oppressive conduct that was not an abuse of power? And, as I tried to point out in my remarks a little earlier, given that the courts have always considered duress or the essence of duress as being the overbearing of the will of a person in a weaker position by a person in a stronger position, how could it not be duress?

So the point we make is that there is no conduct that would not be caught by the opposition's amendment. We are not excluding or lowering the threshold, as it were, by introducing the amendment. We are merely trying to make the definition of coercion sharper by removing the rhetorical language of no legal consequence.

I seek your guidance, Madam Temporary Chairman. I have only moved the first set of opposition amendments that is to deal with coercion. Senator Feeney has addressed those and also anticipated the amendments I have not yet moved—which is fine. But I suspect the first set of opposition amendments should be put and then I will seek leave to move together the second set of opposition amendments, and I will address them at that time.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

That is correct. I will therefore put that opposition amendments (1) to (3) on sheet 7339 be agreed to.

Question negatived.

John Madigan (Victoria, Democratic Labor Party) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (4) on sheet 7333 together:

(1) Schedule 1, item 8, page 4 (after line 21), after the definition of servitude in section 270.1A, insert:

  sexual servitude has the meaning given by section 270.4A.

(2) Schedule 1, item 8, page 4 (after line 25), after paragraph (a) of the definition of slavery-like offence, insert:

  (aa) section 270.5A (sexual servitude offences);

(3) Schedule 1, item 12, page 6 (after line 9), after section 270.4, insert:

270.4A Definition of sexual servitude

(1) For the purposes of this Division, sexual servitude is the condition of a person who provides sexual services and who, because of the use of coercion, force or threats:

  (a) is not free to cease providing sexual services; or

  (b) is not free to leave the place or area where the sexual services are provided.

(2) Subsection (1) applies whether the coercion, force or threat is used against the victim or another person.

(3) The victim may be in a condition of servitude whether or not:

  (a) escape from the condition is practically possible for the victim; or

  (b) the victim has attempted to escape from the condition.

(4) Schedule 1, item 12, page 7 (after line 12), after section 270.5, insert:

270.5A Sexual servitude offences

(1) A person:

  (a) whose conduct causes another person to enter into or remain in sexual servitude; and

  (b) who intends to cause, or is reckless as to causing, that sexual servitude;

is guilty of an offence.

Penalty:

  (c) in the case of an aggravated offence (see section 270.8)—imprisonment for 20 years; or

  (d) in any other case—imprisonment for 15 years.

(2) A person:

  (a) who conducts any business that involves the sexual servitude of other persons; and

  (b) who knows about, or is reckless as to, that sexual servitude;

is guilty of an offence.

Penalty:

  (c) in the case of an aggravated offence (see section 270.8)—imprisonment for 20 years; or

  (d) in any other case—imprisonment for 15 years.

(3) In this section:

  conducting a business includes:

  (a) taking any part in the management of the business; or

  (b) exercising control or direction over the business; or

(c) providing finance for the business.

Whilst I and the DLP support the bill, we have serious concerns, as I have said previously, about what we believe will be its unintended consequences. We believe that the amendment differentiates in the case of assault and sexual assault, harassment and sexual harassment. Why should there not be a clear differentiation between servitude and sexual servitude? I remind the Senate that sexual servitude is an extremely serious offence and deserves legislative recognition and that 70 per cent of human trafficking cases involve sexual servitude.

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

Can I begin by indicating on behalf of the government that we will not be supporting Senator Madigan's amendment. Given the increase in the number of the victims that have been identified in other industries, one of the primary purposes of the bill is to expand the application of the existing offences beyond the sex industry. As such, the bill removes the existing offences of sexual servitude and conducting a business involving sexual servitude, and replaces them with offences of servitude and conducting a business involving servitude.

The broader offences in the bill will continue to apply to a person who is exploited in the sex industry, but they will also be able to be utilised by law enforcement authorities who are investigating instances of exploitation in other industries. We also note that the penalties outlined in Senator Madigan's proposed amendments are the same as those proposed for the broader offence in the bill. We also note that Senator Madigan's proposal does not aim to retain or reinsert the existing offence of deceptive recruiting for sexual services, which will be similarly broadened by the bill to an offence of deceptive recruiting applicable regardless of industry.

In addition, we note that proposed subsection 270.4A(2) of Senator Madigan's proposed definition of sexual servitude refers to 'coercion, force or threat' being used against a victim to gain their compliance, which is inconsistent with the remainder of the bill, which seeks to implement the broader concept of coercion, threat or deception. As the proposed amendments to the bill would not have any practical effect, our view is that there is not any policy justification for accepting the senator's amendments, which, in the government's view, would add unnecessary length and complexity to the statute book.

Given the increase in the number of victims that have been identified in industries other than the sex industry—such as hospitality, to name but one—one of the primary purposes of this bill is to expand the application of the existing offences beyond the sex industry. This is especially important in order to ensure that investigators and prosecutors have the most appropriate range of offences available to them where the circumstances of a matter do not amount to slavery, but nonetheless demonstrate significant inappropriate conduct. As such, the bill removes the existing offences of sexual servitude and conducting a business involving sexual servitude, and replaces them with offences of servitude and conducting a business involving servitude. The broader offences in the bill will continue to apply to a person who is exploited in the sex industry, but, as I have said, are also able to be used by law enforcement authorities regarding instances of exploitation in other industries.

As sexual servitude is already covered by the bill, we believe that the senator's amendment does not add anything to the government's legislation, and, as I have already indicated, the government will not be supporting the amendment.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to 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.

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

I might deal more broadly with a couple of issues as we work through this, particularly forced marriage and the definition of 'coercion', which—

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

We've done that.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

We have dealt with that. We are just dealing with opposition amendments (4) and (5) in relation to forced marriage.

Joe Ludwig (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to 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—

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

On the last point that Senator Ludwig makes, I am prepared to accept his assurance that there has been legislation passed by previous non-Labor governments or supported by the non-Labor side of politics in years gone by, which have contained in different contexts somewhat similar group liability provisions.

Senator Ludwig can I say to you, with awful candour, that I do not say that everything the opposition has ever done has been perfect. I do not say that everything that the coalition has done in government, or even said in opposition, has been perfect. There is no argument, with respect Senator Ludwig—and I see by your cherubic smile that you agree with me, or seem to agree with me—to say that because this mistake was made in the past it should be perpetuated again in the present. Or this error of judgement; if not mistake, this error of judgement—this error of legislative drafting judgement.

Coming to the substance of the issue: Senator Ludwig contends that the reason proposed subsection 2 of section 270.7B should remain in the bill is because it may operate in circumstances in which the other party to a forced marriage was aware of the coercion, but was not a participant in the coercion. That effectively is what Senator Ludwig is saying: that that person is the non-innocent party and is aware of the coercion, but was not causative of or instrumental in the coercion. Senator Ludwig I have to say to you with respect, particularly when it comes to the fulfilment of a ceremony of marriage, and especially in view of the breadth of the definition of coercion, it is very difficult to see how a person who goes to the altar or goes before a marriage celebrant knowing the other person has been coerced into being present nevertheless persists with the ceremony and says, 'I do'.

It is almost inconceivable that they would not be regarded as thereby a party to, or at least an accessory to, the coercion; and therefore caught by, as I said in my remarks a little while ago, part 2.4—that is, the accessories provision of the existing Criminal Code. So I adhere to my view that the example you posit would be caught by the principal offence-creating provision, subsection1.

But what you have not addressed, Senator Ludwig, is this: you have said, 'Well, there might be a circumstance in which there is knowledge on the part of the other person who is to undertake the marriage ceremony that the putative spouse has been coerced'; but subsection 2 does not work on knowledge. Knowledge is not an element of subsection 2. The elements of subsection 2 are: the fact that the person is a party to a forced marriage, so subsection 2 depends upon the subsection 1 requirements having been established to show that it is a forced marriage and that they are not the victim—in other words, they are the other party. Knowledge of the circumstances of coercion—knowledge of the fact that it is a forced marriage—is not an element of the offence; which of course means that it not only would capture people in the circumstances that you posit, who as I say in my view would in any event have committed the principal offence, but it also captures people who were not aware of the coercion. The very, very unusual, but I suppose theoretically possible, circumstance of a party to a proposed marriage going through the ceremony unaware that his or her proposed spouse had been the victim of coercion does not depend on knowledge.

So you have not answered the question, with respect, Senator Ludwig, of why it is that somebody in that situation should be held to have committed a crime when, in the absence of knowledge of the wrongful conduct of the coercion, they have done nothing wrong. They, in a sense, are themselves a victim, not a wrongdoer. And the legislation, as I pointed out before, seems to implicitly concede that by saying, 'Well, the only way we can get you is by imposing strict liability'—because we do not absent the unusual requirement of strict liability, say to somebody who was completely innocent of the circumstances of wrongdoing, 'You have committed a crime.' So, Senator Ludwig, I hear what you say but the opposition is entirely unpersuaded by your arguments.

Joe Ludwig (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to 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.

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

I know Senator Fawcett has another point to make. We have exchanged our views, but let me simply make the point to you, Senator Ludwig, that all that proposed subsection 2(c)—that is, the words:

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

could possibly mean is that they were not the person coerced; they were not the person who was the victim of the unlawful conduct. But one would still have to prove, as is clear from subsection (a), that there was a victim—that coercive conduct or constituting a forced marriage occurred. So it is not as if this issue, on which the prosecution of course bears the burden of proof beyond reasonable doubt, is not going to have to be dealt with by the court in any event.

Anyway, I will not prolong it, Senator Ludwig. I simply restate the opposition's very clear view that none of the circumstances that you have posited, where there is any form of moral culpability on behalf of the nonvictim, would not be caught by subsection 1, and in the unusual theoretical circumstances in which they would be missed by subsection 1, then under no circumstances would the other party to the marriage have done anything wrong.

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

Minister, I draw your attention to two points. Firstly, to the issue of the strict liability being applied to the party, who in this case would normally be the groom, the position you have taken, which is that he would be guilty because he probably would have knowledge, is very much the world view of the majority of Australians—that arranged marriages, hence forced marriages, are not the norm and therefore there could be some suspicion. But most of the circumstances that have been reported in Australia are where young women have been taken to another country where arranged marriages are quite often the cultural norm and where two willing participants may be commonplace. So it is well within the bounds of reason that somebody there may have no knowledge nor even suspicion that there has been coercion and forcing of the person—in this case the woman from Australia. So in regard to the oft quoted Edmund Burke who says that all it takes for evil to flourish is for a good man to do nothing, I concur that if there was knowledge by participating in the marriage that person would then commit an offence. But given the cultural norms in many of these countries it is quite conceivable that the other person is viewing this purely as an arranged marriage. So I have a concern that we would be making that person a criminal under Australian law when in actual fact they may have committed no crime.

My second point, and probably the one I am more concerned about, is the government's placing of strict liability on the other party. I ask you, Minister: who has done the greater harm to the victim, the other party or, as evidenced in the majority of the cases reported in the Australian media and brought before Australian authorities, the caregivers and, I believe, shockingly, the parents? It is they who have coerced or in some cases resorted to physical violence and imprisonment of their children in order to force them into the marriage. Surely they are the ones in the vast majority of reported cases who have inflicted the greater harm. So I wonder if you could explain to the Senate why the government has sought to put a strict liability on the groom—or, the other party—who may, because of cultural reasons, be quite innocent, and yet those who have actually inflicted the greater harm are not subject to a strict liability.

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

I can be short on this. The strict liability offence only applies to where the person is the victim, so you would still have—

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

No, the nonvictim.

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

The nonvictim, I should say. So you would still have it for those using your term—I am not sure I like the term—who cause person A and person B to marry. There are still provisions here, quite strong, to allow the prosecutions to occur. I am sure you are not advocating for a strict liability in those circumstances. I am not being facetious—

Senator Brandis interjecting—

No, that is why I am pointing that out. Thank you, Senator Brandis. So on that basis the legislation is quite clear about where the strict liability applies and in only those circumstances and in only that very narrow one element of circumstance, not more broadly, and the legislation does encapsulate the broader issue around those people who may cause another person to enter into a forced marriage.

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

I think the problem with that answer, if I may say so, with respect, is that, although as you said before the strict liability merely applies to proposed subsection 2(c) so that the prosecution is relieved of the obligation to prove the person is not a victim of a forced marriage, it does not apply to subsection 2(a) or 2(b), which does require the prosecution to prove the character of the other party to the marriage and that the marriage was a forced marriage. In other words, to prove that which subsection 1, the principal offence-creating provision, establishes as the elements of the offence.

So those who think that some burden has been lifted from the prosecution's shoulders by creating, as it were, a statutory presumption in relation to the one issue in subsection (2)(c), really, with respect to them, missed the point, because that issue is nevertheless—albeit from a different aspect of the case—still before the court. It still has to be proved by the prosecution and it has to be proved beyond reasonable doubt.

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

I agree: it still has to be proved that it is a forced marriage. You are quite right.

Question negatived.

Bill agreed to.

Bill reported without amendments; report adopted.