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CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details
Criminal Code Amendment (Slavery and
Sexual Servitude) Bill 1999
Date Introduced: 24 March 1999
House: Senate
Portfolio: Justice and Customs
Commencement: Twenty-eight days after Royal
Assent
To create offences of slavery and sexual
servitude, provide for penalties and repeal a number of old
Imperial Acts currently in force in Australia relating to
slavery.
The need for the Bill
At present, a number of 19th century
Imperial Acts-most importantly, the Slave Trade Act 1824-almost
certainly represent the law in Australia about slavery.(1) In
general these Acts apply in Australia by reason of paramount
force.(2) No Australian Parliament has enacted laws which
criminalise slavery.
The Imperial statutes were enacted by the
British Parliament to punish those involved in the slave trade and
to declare slaves and their children to be free. They were
principally enacted in response to the slave trade in which African
people were forcibly taken to work in the plantations of North
America. In 1990, the Australian Law Reform Commission made the
following comments about those Imperial statutes:
The fact that this area of substantive
Australian criminal law is regulated by 19th century
Imperial enactments itself demonstrates the need for change. While
the application of those enactments in Australia is less obscure
than in the case of piracy, their language is archaic and a number
of their provisions relate to circumstances and institutions that
have either changed or long since fallen into disuse. More
importantly, the appropriate punishments for the offences they
create are now uncertain. Australia's international obligations
require the trade in slaves to be an offence. Accordingly, these
complex Imperial Acts with their uncertain punishments should be
replaced with modern and concise Australian statutory
offences.(3)
Thus, reasons for the Bill's introduction
include the need to modernise Australian law and ensure that
penalty provisions are effective. The Second Reading Speech
identifies another objective of the proposed legislation. This is
to deter:
... the growing and highly lucrative
international trade in people for the purposes of sexual
exploitation. ... Intelligence from Australian and overseas sources
confirms that the problem is a significant one for Australia. In
August 1997 the AFP reported that in the previous 18 months it had
received information of fourteen possible cases in this country.
The NCA has also reported that it is aware of 8 possible cases over
the period from December 1992 to November 1996. Those cases
involved 25 women, one of whom was allegedly a 13 year old girl
brought to this country from Thailand to work as a prostitute to
repay her father's debt.(4)
This Bill is based on work done by the Model
Criminal Code Officers Committee (MCCOC).(5) As part of the Model
Criminal Code project, MCCOC was asked by the Standing Committee of
Attorneys-General to examine a Commonwealth proposal to enact laws
dealing with slavery and sexual servitude. In April 1998 MCCOC
released a discussion paper dealing with these issues. In November
1998 it published a Final Report.(6)
The Bill is the Commonwealth component of a
proposed package of uniform laws on slavery and sexual servitude at
Commonwealth, State and Territory level.
Constitutional
issues
Under the Commonwealth Constitution, the
Commonwealth can make laws in respect of specific matters. Many of
these matters are listed in section 51 of the Constitution. The
Bill creates offences and penalties. There is no criminal head of
power in the Constitution and while the Commonwealth can and does
make criminal laws,(7) these matters are traditionally regarded as
the province of the States and Territories.
The Commonwealth's power to enact slavery and
sexual servitude legislation is most likely to be found in section
51(xxix) of the Constitution. This power-the external affairs
power-enables the Parliament to legislatively implement Australia's
international agreements regardless of the subject matter of those
agreements.(8) It also supports laws with respect to matters
physically external to Australia and may extend to compliance with
the recommendations of international agencies and the pursuit of
international objectives which have not been reduced to binding
obligations.(9)
Australia is a party to a number of
international conventions which outlaw the slave trade. The most
important of these are the International Convention to Suppress the
Slave Trade and Slavery, its 1953 Protocol and the 1956
Supplementary Convention on the Abolition of Slavery, the Slave
Trade and Institutions and Practices Similar to Slavery.(10) Also
relevant are Australia's international obligations under general
human rights instruments such as the International Convention on
the Elimination of All Forms of Racial Discrimination, the
International Covenant on Civil and Political Rights, the
International Convention on the Elimination of All Forms of
Discrimination Against Women and the International Convention on
the Rights of the Child.
Insofar as the Bill's provisions outlawing and
penalising slavery rely on Australia's international treaty
obligations they must be appropriate and adapted to the purpose of
implementing the relevant treaties.(11)
The Bill also covers sexual servitude. The MCOCC
Report comments:
... while international law and conventions are
clear on their prohibition of chattel slavery and the like, and
hence the Commonwealth mandate is also quite clear, less certainty
is involved in the coverage of slave like conditions amounting to
servitude. Bassiouni comments (at 459):
"The primary reason for these still prevalent
manifestations of slavery and related practices is that the basic
legal element in international instruments on slavery is the total
physical control by one person over another. Whenever the control
is less than total, such as when it is partial or limited in time,
it is removed from the system of protections developed by these
international instruments."(12)
Section 51(xxix) of the Constitution may also be
relevant because the Bill deals with matters geographically
external to Australia. In Polyukhovich v. Commonwealth(13)
the High Court held that amendments to the War Crimes Act
1945 (Cwlth) which enabled Australian courts to punish as war
crimes certain conduct which occurred outside Australia during
World War II were constitutionally valid. A majority of the Court
suggested that 'externality' alone can enliven the external affairs
power.(14) This view was affirmed by a five-member High Court
judgment in Victoria v. Commonwealth where it was said
that this interpretation 'must now be taken as representing the
view of the Court.'(15)
A further argument which might be used to
support the Bill is that the external affairs power applies because
international law recognises a 'universal jurisdiction' to
prosecute perpetrators of international crimes. International
crimes have been conceptualised as peremptory norms of
international law against which no derogation is permitted by a
State, regardless of the doctrine of State sovereignty. The
International Law Commission has indicated that settled rules of
international law provide that trade in slaves is such a peremptory
norm.
The concept of a 'universal jurisdiction' has
not been considered to any great extent by the High Court. In
Polyukhovich, Brennan J concluded that a 'universal
jurisdiction' existed to try suspected war criminals irrespective
of whether a State was under an obligation to do so and
irrespective of whether any international concern exists that a
State should do so. However, in relation to the amendments to the
War Crimes Act 1945 he found that they lacked conformity
to international law and so were invalid. Toohey J in the same case
held that the amendments were supported by the external affairs
power as an exercise of 'universal jurisdiction' as well as on the
ground of 'externality.'(16) Assuming that the Commonwealth has a
'universal jurisdiction' it might be necessary to show that slavery
and sexual servitude were international crimes and that the
relevant provisions in the Bill conformed to international law.
The Criminal Code Amendment
(Slavery and Sexual Servitude) Bill 1998 and the present
Bill
In 1998, the Government introduced a Criminal
Code Amendment (Slavery and Sexual Servitude) Bill 1998 based on a
Discussion Paper produced by MCCOC in April 1998. That Bill lapsed
when the 1998 General Election was called.
There are differences between the 1998 Bill and
the present Bill. In particular, recklessness has been added as a
fault element to sexual servitude offences, penalties have been
increased, the definitions of slavery offences and sexual servitude
offences have been altered, a jurisdictional requirement has been
added and there is provision for aggravated offences. These
differences appear to reflect changes recommended in MCCOC's
November 1998 Report which was produced following a consultative
process.
Schedule 1-Criminal Code
Act 1995
Schedule 1 of the Bill inserts
new Chapter 8-Offences against
humanity into the Criminal Code. New Division 270 is
headed 'Slavery, sexual servitude and deceptive recruiting.'
Clause 270.1 inserts a
definition of 'slavery.' In brief, 'slavery' is defined as
occurring when ownership powers are exercised over a person.
Importantly, the definition allows for the circumstance in which
ownership rights are exercised as a result of a debt or contract
made by the enslaved person.
Clause 270.2 provides that
slavery continues to be unlawful and abolished despite the fact
that the Act will repeal Imperial Acts relating to slavery. This
provision was inserted to ensure that slavery is abolished for all
purposes-not just the purposes of the criminal law.(17)
Clause 270.3(1) defines the
offence of slavery as occurring when a person intentionally
possesses, or exercises powers of ownership over, a slave or
engages in slave trading-irrespective of whether the person engages
in that conduct inside or outside Australia. The maximum penalty is
25 years imprisonment. Under the Crimes Act 1914 (Cwlth),
a formula is provided to enable a court, where appropriate, to
convert a penalty of imprisonment to a pecuniary penalty or to a
combination of a pecuniary penalty and a term of
imprisonment.(18)
'Slave trading' is defined in subclause
270.3(2) to include capturing a person in order to make
them a slave, purchasing or selling slaves, commercial transactions
involving slaves and directing or financing such activities.
Clause 270.4 defines the
expression 'sexual servitude.' 'Sexual servitude' occurs when a
person provides sexual services and, because of force or threats,
is not free to cease providing those services or leave the place
where they provide those services. 'Threat' includes a threat to
cause a person's deportation [paragraph
270.4(2)(b)].
Clause 270.5 inserts
jurisdictional requirements. There are two circumstances in which a
sexual servitude offence will be caught by the legislation. The
first is that the conduct constituting the offence is committed to
some degree outside Australia and the relevant sexual
services are provided to some extent within Australia. The second
is that the proscribed conduct occurs to some extent inside
Australia and the sexual service occurs to some extent
outside Australia.
Clause 270.6 defines offences
of sexual servitude. Subclause 270.6(1) provides
that a person who intentionally or recklessly causes a person to
enter or remain in sexual servitude is guilty of an offence. The
maximum penalty in the case of an aggravated offence is 19 years
imprisonment. In any other case the maximum penalty is 15 years
imprisonment. Subclause 270.6(2) provides that a
person who conducts a business that involves sexual servitude and
who knows or is reckless about that sexual servitude is guilty of
an offence. The expression 'conducting a business' encompasses
managing, directing, controlling or financing the business. The
penalties are the same as those in subclause 270.6(1).
Clause 270.7 creates an offence
relating to deceptive recruiting for sexual services and provides
that the penalty is a maximum of 9 years imprisonment in the case
of an aggravated offence and 7 years imprisonment in any other
case.
Clause 270.8 provides that an
offence will be an aggravated offence if committed against a person
who is under 18 years of age.
Clause 270.10 provides that
offences of slavery and sexual servitude can be committed
irrespective of whether the defendant is an Australian citizen or
resident.
Clause 270.11 mandates that the
Attorney-General's consent must be obtained before certain
proceedings can be instituted-in particular where any part of the
alleged conduct occurred outside Australia and the alleged
offender is not an Australian citizen, resident or corporation.
However, a person can be arrested, charged or remanded before the
Attorney-General's consent is obtained.
Clause 270.12 provides that the
legislation does not exclude the operation of other Commonwealth
laws or State or Territory laws.
Clause 270.13 provides that a
person cannot be convicted of an offence under the legislation if
they have been either convicted or acquitted in an overseas
jurisdiction.
Schedule 2-Repeal of Imperial
Acts
Schedule 2 of the Bill repeals
the Imperial laws or provisions of Imperial laws that are
listed.
Jurisdiction
Under the Bill a slavery offence can be
committed irrespective of whether it occurs inside or outside
Australia. A different approach is taken to sexual servitude and
recruiting offences. In relation to these offences, either the
proscribed conduct must occur to some extent outside Australia and
the sexual services must be provided to some extent inside
Australia, or the proscribed conduct must occur to some extent
inside Australia and the sexual services be provided to some extent
outside Australia. Other permutations can readily be imagined. For
example, an Australian citizen or resident may trade people to work
in conditions of sexual servitude and this conduct and the
provision of the sexual services may take place entirely overseas.
The Bill does not cover such a circumstance.
In common law jurisdictions such as Australia,
criminal law usually has a territorial basis. However, it is
possible to legislate on the basis of nationality. For example,
under Part IIIA of the Crimes Act 1914 (Cwlth)(19)
Australian citizens and residents (whether natural or corporate)
are prohibited from engaging in sexual activities with children
outside Australia.
The question thus arises whether it would be
appropriate to criminalise conduct involving sexual servitude where
there is no territorial nexus with Australia but where the
perpetrator is an Australian citizen or resident.
It is also possible that perpetrators of sexual
servitude offences may operate entirely within Australia and the
sexual services provided by their victims are provided wholly
within Australia. In this case, the Second Reading Speech indicates
that the States and Territories will pass appropriate laws.(20)
The fault element in slavery
offences
Slavery offences as defined in clause 270.3
require intention as their fault element. Assuming it would be
otherwise within power, the question arises whether it would be
useful to include an offence of recklessly engaging in slave
trading. In contrast to clause 270.3, intention or recklessness are
the fault elements of sexual servitude offences. Under the Criminal
Code a person is reckless about a circumstance or result if they
are aware of a substantial risk that the circumstance exists or a
result will occur and it is unjustifiable to take the risk.(21)
Penalties for a slavery offence involving recklessness would need
to be adjusted accordingly.
The scope of sexual
servitude
Workers held in sexual servitude may be forced
to provide unsafe sex to their clients. Their health and life may
thus be put at serious risk as a result of the transmission of
diseases such as HIV/AIDS, hepatitis C and syphilis. The Minister's
Second Reading Speech comments:
Many [recruits] are not free to reject a client
or to determine the conditions on which they service them. Unsafe
sexual practices are regularly imposed on them and as a consequence
they live under the constant fear of contracting HIV and other
sexually transmitted diseases.
The definition of 'sexual servitude' contained
in the Bill restricts it to circumstances where, as a result of
force or threats, the person providing sexual services is not free
to stop providing those sexual services or leave their place of
work. The question arises whether the legislation should also
provide that sexual servitude occurs when, due to force or threats,
a person supplying sexual services is not free to decline sexual
services sought in an unreasonable manner. The MCCOC Report
commented, in relation to its own recommendations, that:
It was ... decided to remove from the definition
[of sexual servitude] the mention of being free to decline to
provide services to a particular person or persons. The Committee
is concerned that such a serious offence should not apply where
someone is happy to provide sexual services, is free to leave, is
not beaten or subject to other force; but simply refuses to kiss
any clients. It should not be the case that an employer who
threatens to sack the person on that basis should be able to be
charged with the sexual servitude offence. While there are more
serious issues, such as the policy in relation to condoms, the
object of these offences is to regulate servitude, not
prostitution.(22)
On the other hand, it could be argued that,
adequately defined, sexual servitude includes the situation where a
person as a result of force or threats is not free to determine the
manner in which they provide sexual services. On this basis, the
alteration suggested above would satisfy the objective of
regulating servitude.
A further issue arises in relation to the
freedom of movement of persons in sexual servitude. The Second
Reading Speech states:
... once in Australia recruits are often placed
under heavy security and their movements strictly controlled. Those
that are fortunate enough to live away from the brothel premises
frequently find that they are driven by guards to and from work and
are not free to go elsewhere.
The definition of 'sexual servitude' contained
in the Bill refers to a person not being free to leave the place
or area where the person provides sexual services. It is
arguable that this definition does not cover the situation where
the person's movements are severely restricted outside of
the place or area where they provide sexual services.
Treatment of people subjected to
slavery or sexual servitude offences
The victims of crimes of slavery or sexual
servitude are generally dealt with by Australian authorities as
unlawful non-citizens, whom the Department of Immigration and
Multicultural Affairs are required to detain and remove from
Australia as soon as reasonably practicable. In certain
circumstances, such a victim may receive a 'criminal justice
visitor visa', which permits a person to remain in Australia when
they are required for the administration of criminal justice.
The MCCOC Report states that a number of
submissions argued that the Committee should make recommendations
about the treatment of victims of these crimes, particularly in
relation to their immigration and refugee status. In the
Committee's view, these issues went well beyond their terms of
reference.
Regardless of the Committee's terms of
reference, it is open to Parliament to consider these issues. As
noted in the Second Reading Speech, trafficking for the purposes of
sexual exploitation is a serious violation of fundamental human
rights. There is an inextricable nexus between legislating against
the crimes of slavery and sexual servitude and implementing
measures to protect human rights. From this public policy
perspective, the protection of human rights is the rationale for
the legislation.
International documents have elaborated upon
State responsibilities in relation to this nexus. For example, the
United Nations' General Assembly's 1993 Declaration on the
Elimination of Violence Against Women (DEVAW) provides that as well
as developing mechanisms to punish perpetrators of violence, States
should ensure that women subjected to violence are provided with
just and effective remedies for the harm that they have suffered
and ensure that women subjected to violence have specialised
assistance to promote their safety and rehabilitation.
Consideration could be given, within the context
of this Bill, to amending the Migration Act to provide a special
status for people subjected to slavery and sexual servitude
offences.
-
- See Australian Law Reform Commission, Criminal Admiralty
Jurisdiction and Prize, AGPS, Canberra, 1990.
- English case law and statutes were applied to the Australian
Colonies as far as they were applicable to local conditions.
Deciding exactly what legislation was applicable depended in part
on whether a law was ordinary English domestic legislation or
whether it was legislation which applied by paramount force.
Paramount force legislation is legislation with the colonies
specifically in mind. See Morris, G et al Laying Down the
Law, 3rd ed, Butterworths, Sydney, 1992.
- ALRC, op.cit, para.108.
- Senate Hansard, 24 March 1999, p.3076.
- In June 1990, the issue of a national model criminal code was
put on the agenda of the Standing Committee of Attorneys-General
(SCAG). A committee was then established consisting of officers
from each Australian jurisdiction with expertise in criminal law
and criminal justice. The committee is responsible for preparing
discussion papers and reports to the SCAG on each chapter of the
proposed model criminal code.
- Model Criminal Code Officers Committee, Chapter 9. Offences
Against Humanity. Slavery. Report, November 1998.
- For example, using the express incidental power or the implied
incidental power.
- With the provisos that such laws do not offend express or
implied constitutional guarantees, that the treaty relied on be
genuine and bona fide and that the law must be a reasonable and
appropriate means of giving effect to the treaty's object.
- Senate Legal and Constitutional References Committee, Trick
or Treaty? Commonwealth Power to Make and Implement Treaties,
November 1995, Chapter 5.
- MCCOC, op.cit, p.4.
- Victoria v. Commonwealth (1996) 138 ALR 129.
- Page 15. The quotation is from Bassiouni, 'Enslavement as an
international crime', (1991) 23 New York Journal of
International Law & Politics, 445 at 459. The situation
relating to international law and convention and sexual servitude
was a reason given by MCCOC for State and Territory legislative
involvement. Note that clause 270.12 of the Bill provides that
State and Territory laws are not excluded or limited by the
operation of the legislation.
- (1991) 172 CLR 501.
- Blackshield, T & Williams, G Australian Constitutional
Law & Theory. Commentary & Materials, 2nd
ed, Federation Press, Sydney, 1998.
- (1996) 187 CLR 416 at 485.
- (1991) 172 CLR 501 at 684.
- MCCOC, op.cit, p. 31.
- Section 4B, Crimes Act 1914.
- Inserted by the Crimes (Child Sex Tourism) Amendment Act
1994.
- Senate Hansard, 24 March 1999, p. 3078.
- Section 5.4.
- Page 33.
Jennifer Norberry and Krysti Guest
4 May 1999
Bills Digest Service
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